Abstract
Data Intermediaries often tend to hide behind the Landmark Supreme Court Judgement in Shreya Singhal v. Union of India[1], where it was held that intermediaries will not remove or disable any access to third party data on its network unless it gets either an order from a Court of Law which has competent jurisdiction or from any governmental agency to that effect. In such context, this article tends to argue why Section 79 of the It Act, 2000 is a misunderstood shield and does not provide absolute protection to data intermediaries. It argues that intermediary liability exists in case their platform is used as a medium to aid the spread of fake news.
This is so, because, Right to Information has been held as a Fundamental Right in several cases like S.P. Gupta v. Union of India and Indian Express Newspapers v. union of India. The Right to Information Act was then formalized guided by these pronouncements of the Court. Having stated the same, when a false information is shared using the platform of a data intermediary, it violates this basic right of its users. Section 79, as has been interpreted by the Court, extends protection only to intermediaries who are passive participators of information. When intermediaries tend to edit, change parts of, omit parts of or becomes the platform that generates such information, it tends to be an active participator which leads them to lose this protection. They also incur liability in case they use registered trademarks as keywords losing their protected conduit.
Summary
This article explains why data intermediaries cannot use Section 79 of the IT Act, 2000 as a shield from refusing liability in certain cases. It explains why this protection is not a generalized one and may lead them to incur liabilities depending on their conduct. It states the initial cause for the change in case of Avnish Bajaj and explains the doctrine on actual knowledge and its purpose. It argues that not stopping the spread of fake news by intermediaries is an essential violation of the Fundamental Right to Information. It states cases when intermediaries lose their protection, that is, when they become the originator or an active participator of data and when they infringe trademark laws. It further expresses that this misunderstanding arises from the failure to see the global shift towards platform governance and explains the global steps taken by Europe and UK in such regard. In the end, it provides an analogy to explain where the liability of the intermediary is incurred.
Introduction:
While most data intermediaries hide behind Section 79, they often fail to realize that what they think of a durable shield is in reality a strongly woven cloth, which may have strong stitches making it tough enough to not tear but not enough to act as a shield. Owing to the complexities of Section 79 of the IT Act, 2000, it remains largely misinterpreted, giving intermediaries a misunderstood hope of protection. While often viewed as a permanent legal status, it continues to remain as a conditional, functional defense that can only be adjudicated on a case-by-case basis relative to specific content.
1. The Catalyst for Change: The Arrest of Avnish Bajaj
The shield of Section 79, as it exists today was forged in response to a significant legal crisis. The original 2000 Act placed a heavy burden on intermediaries to prove that an offense occurred without their knowledge or despite their due diligence. This was starkly illustrated by the arrest of Avnish Bajaj, the CEO of Bazee.com, after a third party offered an offensive video for sale on the platform[2]. The ensuing public and industry outcry led to the 2008 Amendment, which introduced a “non-obstante” clause intended to exonerate intermediaries from liability for third-party information, provided they follow prescribed due diligence guidelines.
2. The Doctrine of “Actual Knowledge”
A recurring misunderstanding involves when an intermediary’s liability is triggered under Section 79(3)(b)[3]. Originally, there existed ambiguity over whether a simple user complaint was enough to constitute “actual knowledge”. The landmark judgement by the supreme Court of India in the case of Shreya Singhal v. Union of India refined this and shed light on the confusion, ruling that “actual knowledge” means the receipt of a court order or a government directive. This standard was established to prevent the “chilling effect” of privatized censorship, where platforms might otherwise over-censor lawful speech to avoid being involved or held as a party to an unlawful Act.
3. The Fake News and Fundamental Rights Dilemma
Despite the safe harbor, intermediaries cannot simply “rub off” liability when their platforms are used to disseminate fake news. The Supreme Court has held that Right to Information is a fundamental right derived from Article 19(1)(a) of the Constitution in landmark judgments of State of U.P. v. Raj Narain[4] in 1975, S.P. Gupta v. Union of India[5] in 1981 which is commonly referred to as the Judges Transfer Case, and Indian express Newspapers v. Union of India[6] in 1964. In light of these judgments, the Right to Information Act was passed in 2005. Even if this Right of the citizens is one which can be claimed usually against the government, it fundamentally, does not leave intermediaries from their liability. Citizens form opinion about the government, country, economy etc based on the information they get access through these intermediaries. These opinions in turn form a basis of their Choice and Vote. If this ‘basis of choice” is disrupted due to the intermediaries running from their liability, it will eventually lead to the collapse of a democratic society and people-based system. Moreover, several intermediaries enjoy the power of consumer trust. A huge percentage of people eventually believe what they see and it subconsciously develops their opinions, cognitive abilities, thoughts and ultimately, actions. Thus, besides the government, it is also the intermediaries who must ensure that the most accurate information is received by the information consumers. When intermediaries facilitate the spread of misinformation, they risk aiding in the deprivation of this fundamental right for millions of its viewers who believe or are likely in its authenticity and to whom they guarantee the spread and display of authentic information. Currently, India lacks a specific “fake news law,” making the due diligence requirements under Section 79 even more critical for maintaining a democratic medium of exchange. It is preferable if a test of proportionality is run to check whether the intermediary has taken due effort to ensure that the data spread is not false.
4. The Functional Trap: Intermediary vs. Originator
The shield is often misunderstood as applying to an entire company, but it actually applies to the function performed regarding a particular electronic record. Under Section 2(1)(w)[7], an entity is an intermediary only when it receives, stores, or transmits a record on behalf of another person. If a platform modifies that information or initiates the transmission, it may be viewed as an “active participant” or originator, thereby losing the protection of the shield.
The limits of this shield were demonstrated in the Google India Pvt. Ltd. v. Visakha Industries[8] case. The Supreme Court clarified that before the 2009 substitution of Section 79, the immunity did not extend to criminal offenses under other laws, such as IPC sections 500 and 501 for defamation (corresponding to Section 356[9]).
5. Active Involvement and Trademark Liability
The shield is further diluted when intermediaries move beyond passive hosting. Recent judgments, such as those involving DRS Logistics and MakeMyTrip[10], have established that using registered trademarks as keywords to trigger advertisements can amount to trademark infringement. In case of DRS Logistics, even when the defendants put forward the argument that mere use of the mark does not amount to the use of trademark even if it acts as a back end trigger. Upon such argument, the Court reiterated that the advertisement which are triggered by a third party have the chance to lead to ambiguity regarding where the goods and services in the advertisement have originated from. If an intermediary provides an assurance of the “genuineness” of products or has a “direct financial interest” in exploiting copyrighted materials, it may be held liable as an active agent rather than a protected conduit.
6. The Global Evolution: EU and UK Comparisons
The misunderstanding of Section 79 often stems from a failure to see it within the global shift toward “platform governance.” While the European Union’s e-Commerce Directive has historically protected “passive” services, new regulations like the Digital Markets Act (DMA) and the UK’s Online Harms proposals are imposing proactive monitoring obligations on “gatekeeper” platforms[11]. India has followed suit with the IT Rules, 2021, which expand due diligence into a “chaperone” regime[12], requiring intermediaries to actively “cause” users not to upload unlawful content or risk losing their safe harbor entirely.
7. Illustration
To understand the misunderstanding of Section 79, let us take the instance of Postal Service. Under “Safe Harbor,” the post office is not arrested if someone sends a threatening letter through the mail because the post office is a passive conduit. However, if the post office starts opening the letters, highlighting certain words to change the meaning of the same, or charging extra fees to make sure the threat is delivered faster, they stop being a “conduit” and become a co-conspirator in the same criminal offence. This makes them lose their protection. Section 79 is the rule that decides exactly when the post office has “opened the letter.”
Conclusion
To conclude, Section 79 is there to provide protection to intermediaries in cases where they act solely as data middlemen and not when they themselves become active participators. When intermediaries do not stop the spread of fake information, it makes them guilty of violating the Fundamental Right to Information of its viewers who genuinely believe in their authenticity and trademark infringements make them lose protection. Also, the Global evolution in this regard has to be taken note of for better understanding of the same.
[1] Shreya Singhal v. Union of India, AIR 2015 SC 1523
[2] Nishad Nadkarni, Sourav Dan and Udia Kanwar, The Conundrum of Intermediary Liability in the Last Decade, Mondaq, (22 Dec. 2025, 9:52 am) https://www.mondaq.com/india/trademark/921920/the-conundrum-of-intermediary-liability-in-the-last-decade,
[3] Information Technology Act, 2000, § 79(3)(b), Acts of Parliament, 2000 (India)
[4] State of U.P. v. Raj Narain, AIR 1965 SC 865
[5] S.P. Gupta v. Union of India, AIR 1982 SC 149
[6] Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641
[7] Information Technology Act, 2000, § 2(1)(w), Acts of Parliament, 2000 (India)
[8] Google India Pvt. Ltd. v. Visaka Industries Ltd., (2020) 4 SCC 162
[9] Bhartiya Nyaya Snahita, 2023, § 356, Acts of Parliament, 2023 (India)
[10] Safir Anand, Intermediary Liability and Safe Harbour – an Umbrella for the Rain, (24th December, 3:44 pm), https://www.anandandanand.com/news-insights/intermediary-liabilities-and-safe-harbour-an-umbrella-for-the-rain/
[11] Safir Anand, Intermediary Liability and Safe Harbour – an Umbrella for the Rain, (24th December, 3:44 pm), https://www.anandandanand.com/news-insights/intermediary-liabilities-and-safe-harbour-an-umbrella-for-the-rain/
[12] Vasudev Devadasan Mr., Conceptualising India’s Safe Harbour in the Era of Platform Governance, Volume 19 Issue 1, IJLT, 2024, https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1420&context=ijlt
Author Name- Prodeepta Chowdhury, 4th Semester, Sister Nivedita University, Kolkata
