This article is written by Neeraj Jain, Siksha O Anusandhan National Institute of Law.
The Legal Foundation: IT Act and Safe Harbour
The Information Technology Act, 2000 is the backbone of India’s digital law regime.
Section 79 grants intermediaries a “safe harbour.” This means they are not liable for third-party content as long as they follow due diligence.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were issued under Section 87 by MeitY.
These Rules expand what “due diligence” actually means.
Earlier, Section 79 treated intermediaries as passive actors.
Now, the IT Rules push them into a more active role.
Who is an Intermediary?
Section 2(1)(w) defines an intermediary as anyone who stores, transmits, or hosts third-party information.
This includes:
- Platforms like Facebook
- X
- Online marketplaces
- Hosting services
Earlier, immunity was broad.
If the intermediary had no actual knowledge of illegal content, it was protected.
The 2021 Rules narrow this comfort zone.
Harmful Content and the New Compliance Burden
The IT Rules 2021 directly address harmful content.
This includes:
- Content threatening public order
- Obscene material
- Child Sexual Abuse Material (CSAM)
Rule 3 imposes mandatory due diligence.
Intermediaries must:
- Publish clear privacy policies
- Prohibit users from posting unlawful content
- Remove content within 36 hours of government or court orders
- Remove sexual content within 24 hours of complaint
The timeline is strict.
Non-compliance risks loss of safe harbour.
Significant Social Media Intermediaries (SSMIs)
The Rules create a new category — Significant Social Media Intermediaries.
These are platforms with more than 5 million users in India.
They must:
- Appoint a Chief Compliance Officer
- Appoint a Nodal Contact Person
- Appoint a Resident Grievance Officer
- Enable traceability of the first originator of certain messages
- Use automated tools to identify CSAM and rape content
This is no longer passive hosting.
It is structured monitoring.
Tension with Section 79(3)(b)
Section 79(3)(b) states that immunity is lost if an intermediary fails to remove unlawful content after receiving actual knowledge.
The IT Rules expand what “knowledge” and “due diligence” look like.
Critics argue that proactive monitoring blurs the line between intermediary and publisher.
If a platform is expected to detect content before notification, is it still merely an intermediary?
There are also free speech concerns under Article 19(1)(a).
Over-monitoring can lead to over-censorship. Fear of liability can create a chilling effect.
MeitY Advisories and Ongoing Litigation
Recent MeitY advisories (2023–2026) clarify that intermediaries must take “reasonable steps” to prevent unlawful content.
Proactive measures are expected. But they are not meant to completely replace takedown systems.
Several provisions of the IT Rules have been challenged. Petitions have been transferred to the Delhi High Court. The debate is not over.
It is evolving: between regulation, accountability, and constitutional safeguards.
Case Laws
Shreya Singhal v. Union of India (2015)
A historic ruling of the Supreme Court in Shreya Singhal v. Union of India invalidated section 66A of the IT Act as being vague but construed Section 79(3)(b) as a narrower section to retain the safe harbour. The Court also taught that intermediaries could no longer be immune when they would receive actual knowledge through a court or government order that would comply with the restrictions required in Article 19(2) (e.g. public order, decency). This regime of notice and takedown did not allow any vigilante censorship because it excluded personal complaints. This ruling established a high burden of liability in pre-IT Rules 2021 in the context of intermediaries in cases of harmful content such as hate speech or defamation when passive.
Christian Louboutin SAS v. Nakul Bajaj (2018)
In this Delhi High Court case, luxury brand Christian Louboutin sued an e-commerce platform for hosting counterfeit shoes. The court denied safe harbour under Section 79, ruling the platform actively abetted infringement by promoting products, negotiating prices, and handling logistics—going beyond passive hosting. For harmful content akin to IP violations, this illustrates Section 79(3)(a)’s exclusion if intermediaries conspire or abet, influencing IT Rules’ due diligence on prohibited listings.
Kent RO Systems Ltd. v. Amit Kotak (2017)
The Delhi high court supported the conclusion of the eBay as an intermediary as per the Section 79 to the claims of the trademark infringement due to the fake purifiers water. eBay also had no liability, despite this warning, unless there was evidence that they had actual knowledge or genuine interest in the activity and they were willing to do it with sellers; there was no proactive scanning obligation devoid of particular regulations. This supports passive immunity but points to the development of IT Rules 2021 to introduce verification procedures against goods that are harmful (e.g. counterfeit or obscene).
Google France SARL v. Louis Vuitton (2014 Influence)
Google managed to hold on to safe harbour for being a neutral search engine as not actively using the trademarks without key word ads. It is used by Indian courts to restrict the intermediary liability of harmful advertisements or content by a third-party but the neutrality of proactive tools in IT Rules 2021 proves this.
With the exception of traceability (Rule 4(2)) in IT Rules 2021, challenges sought concurrently flowed to the Supreme Court to prevent mixed messages. Other petitioners such as WhatsApp are of the view that it compromises end-to-end encryption, revealing the sources of harmful materials and infringing privacy (Article 21). Courts have maintained traceability in the case of non-SSMIs, doubting whether proactive responsibilities can invalidate the safe harbour of Section 79. These examples define the scopes of Section 79 as follows: non-agentic intermediaries have passive protection provided they are not notified through legal means, yet IT Rules 2021 (e.g., grievance officers, content audits) push such boundaries of harmful content.
Conclusion
Under Section 79 of the harmful content rules, IT Rules 2021 substantially improve the intermediary accountability requirement by adhering to proactive actions such as technology-based identification and prompt takedowns and risking the loss of the traditional safe harbour provisions. Judicial precedents like Shreya Singhal are still protecting the constitutional limits by policy demand of actual knowledge through judicial/authority route whereby the intermediaries would not be randomly turned into content censors. Nevertheless, the onward problems in the Delhi High Court also underscore that there are still underlying tensions, especially regarding privacy rights in Article 21 and free speech in Article 19(1)(a) because requirements such as originator traceability and reports of monthly compliance may overwork platforms and allow platform abuse.
Going forward, next-generation regulatory changes should maintain a fine balance: enhancing systems to combat real evils such as CSAM, deepfakes, and misinformation without attempting to impose the generalized surveillance that will kill inspiration or be a platform of traffic in overreach by the state. The global examples, including the Digital Services Act of the EU, would help policymakers to include proportionality tests and judicial review of IT Rules, so that these aligned with both technology and jurisprudence. Finally, the concerted effort by platform, civil society, and court as stakeholders will have to be found so that a safer online environment that supports the democratic ideals yet holds intermediaries accountable and liable of abusive content on the Section 79 is created.
Frequently Asked Questions
What is an intermediary under Section 79?
Any entity transmitting or hosting third party electronic records, like social media or ISPs, qualifying for safe harbour if due diligence is observed.
How do IT Rules 2021 define harmful content?
Includes material threatening sovereignty, public order, obscenity, CSAM, or impersonation; SSMIs must proactively identify via tech tools.
When does safe harbour under Section 79 lapse?
If intermediaries abet offenses (79(3)(a)) or fail to remove content post court/government notice under Article 19(2) (79(3)(b)).
Has IT Rules 2021 faced legal challenges?
Yes, multiple HCs (now Delhi HC) question privacy intrusions and proactive monitoring’s impact on Section 79 immunity
Difference between IT Rules 2011 and 2021?
2021 adds SSMI-specific duties, traceability, and three-tier grievance system, heightening liability for harmful content.
References
1. Information Technology Rules, 2021 suggest big changes for – IAPP iapp
https://iapp.org/news/a/information-technology-rules-2021-suggest-big-changes-for-big-tech-in-india
2. THE CONCEPT OF INTERMEDIARY LIABILITY: AN INSIGHT linkedin
https://www.linkedin.com/pulse/concept-intermediary-liability-insight-krrishan-singhania-
3. Landmark Intermediary Liability Decision from the Indian. cyberlaw.stanford
https://cyberlaw.stanford.edu/blog/2015/03/landmark-intermediary-liability-decision-indian-supreme-court/
4. Important Cases On Information Technology Act, 2000 lawyersclubindia
https://www.lawyersclubindia.com/articles/important-cases-on-information-technology-act-2000-14861.asp
5. Navigating the Fine Line: Bombay High Court’s Landmark Ruling on Intermediary Liability and Free Speech in Digital India iprmentlaw
https://iprmentlaw.com/2021/03/07/information-technology-rules-2021-ushering-in-a-strict-regime-of-internet-censorship-for-inter .
6. Amendments to IT Rules, 2021 – PRS India prsindia
https://prsindia.org/billtrack/amendments-to-it-rules-2021
7. Section 79 of the IT Act 2000, Legal Framework, Latest News vajiramandravi
https://vajiramandravi.com/current-affairs/section-79-of-it-act/
8. Rule 3(1)(b), Intermediary Liability, and the Burden of forum.nls.ac
https://forum.nls.ac.in/ijlt-blog-post/rule-31b-intermediary-liability-and-the-burden-of-reasonable-efforts/
9. MeitY Advisory to Social Media Platforms on Unlawful Online Content scconline
https://www.scconline.com/blog/post/2026/01/03/meity-advisory-on-unlawful-online-content-intermediaries-and-social-media-platfor
10. Shreya Singhal Vs. Union of India (UOI) – Manupatra Academy manupatracademy
http://www.manupatracademy.com/LegalPost/MANU_SC_0329_2015
