ABSTRACT
The regulation of intermediary liability has become an important legal issue in India’s digital landscape. Section 79 of the Information Technology Act, 2000 offers safe harbour protection to intermediaries. This shields them from liability for third-party content as long as they meet due diligence requirements. However, the rise of misinformation, cybercrime, hate speech, and deepfakes has led to stricter regulatory measures through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and later amendments.
This paper looks at the evolution of intermediary liability in India and examines the shift from platform neutrality to active content management. It evaluates the impact of expanded intermediary obligations on freedom of speech and expression under Article 19(1)(a) of the Constitution. The study argues that unclear compliance standards and increased content moderation responsibilities might turn intermediaries into digital gatekeepers. This raises concerns about censorship, transparency, and democratic discourse. A balanced regulatory framework is necessary to maintain both platform accountability and constitutional protection of free speech.
Keywords: Intermediary liability, Safe Harbor, Freedom of Speech and Expression, Online Censorship, Digital Gatekeeping
INTRODUCTION
The rapid expansion of the internet has transformed the manner in which individuals communicate, access information, and exercise their freedom of speech and expression. Social media platforms, search engines, messaging applications, and online marketplaces have become integral to public discourse, making the regulation of digital intermediaries a significant legal and constitutional issue. As these platforms facilitate the dissemination of vast amounts of user-generated content, determining the extent of their legal responsibility has become increasingly complex.
In India, intermediary liability is primarily governed by Section 79 of the Information Technology Act, 2000, which grants safe harbour protection to intermediaries acting as neutral facilitators of third-party content, subject to compliance with due diligence requirements. This framework was introduced to encourage innovation while ensuring that intermediaries were not held liable for content.
RESEARCH METHODOLOGY
This research adopts a doctrinal and analytical methodology to examine the evolving framework of intermediary liability in India. The study relies on primary sources such as the Information Technology Act, 2000, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and relevant judicial decisions, including Shreya Singhal v. Union of India. Secondary sources such as journal articles, research papers, and policy reports have also been consulted. The research critically analyses the impact of intermediary regulation on freedom of speech, online censorship, and platform accountability in the digital age.
REVIEW OF LITERATURE
The issue of intermediary liability has attracted considerable scholarly attention due to its implications for freedom of expression, platform accountability, and digital governance. Existing literature broadly examines three interconnected themes: the rationale behind safe harbour protection, the growing demand for intermediary accountability, and the constitutional concerns arising from increased content moderation obligations.
Several scholars have argued that safe harbour provisions are essential for preserving an open and innovative internet. The traditional justification for intermediary immunity is that digital platforms host an enormous volume of user-generated content and cannot reasonably monitor every communication transmitted through their services. Imposing strict liability on intermediaries would likely encourage excessive censorship and hinder the growth of online platforms. Consequently, safe harbour frameworks have been viewed as necessary safeguards for both innovation and freedom of expression.[1]
At the same time, a significant body of literature highlights the limitations of absolute intermediary immunity. Researchers have pointed to the increasing prevalence of misinformation, online harassment, hate speech, cyber fraud, and non-consensual intimate imagery as evidence that digital platforms exercise substantial influence over public discourse. According to this perspective, intermediaries cannot merely function as passive conduits of information and must assume greater responsibility for preventing the dissemination of harmful content.[2]
Following the introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, scholarly debate has increasingly focused on the constitutional implications of expanded intermediary obligations. Several commentators have argued that requirements relating to content moderation, traceability, grievance redressal, and compliance mechanisms represent a shift away from the traditional safe harbour model. While these measures are intended to improve accountability, concerns have been raised regarding their potential impact on privacy, freedom of expression, and procedural fairness.[3]
Particular attention has been devoted to the Supreme Court’s decision in Shreya Singhal v. Union of India. Legal scholars generally regard the judgment as a significant safeguard for online free speech because it restricted intermediary liability to situations involving valid court orders or lawful government notifications. The decision established the “actual knowledge” standard and sought to prevent intermediaries from becoming private arbiters of the legality of online content. However, recent academic discussions suggest that subsequent regulatory developments may have weakened the practical effect of this safeguard by encouraging proactive content moderation.[4]
Another area of growing scholarly concern relates to algorithmic regulation and private censorship. Researchers have observed that content moderation decisions are increasingly influenced by automated systems designed to identify and remove potentially harmful content. While such systems improve efficiency, they often struggle to assess context, satire, political criticism, and culturally nuanced speech. Scholars argue that the fear of regulatory consequences may incentivize intermediaries to remove lawful content, thereby creating a chilling effect on public discourse.[5]
Despite extensive literature on intermediary liability, most existing studies focus either on the legality of the Information Technology Rules, 2021 or on broader concerns relating to free speech and online regulation. Relatively less attention has been paid to the cumulative effect of legislative amendments, judicial interpretations, and executive advisories in transforming the role of intermediaries. There remains a need for a comprehensive analysis of whether India’s intermediary liability framework has evolved from a system based on platform neutrality and safe harbour protection into one characterized by proactive content governance and digital gatekeeping.
The present study seeks to address this gap by critically examining the evolution of intermediary liability in India and evaluating its implications for freedom of speech, online censorship, and democratic participation in the digital age.
METHOD: FROM SAFE HARBOUR TO DIGITAL GATEKEEPING
Evolution of Intermediary Liability in India
The rapid growth of the internet and digital communication has transformed the manner in which information is created, disseminated, and consumed. Social media platforms, search engines, online marketplaces, and messaging applications have become essential mediums for communication and public discourse. These entities function as intermediaries by facilitating the transmission, storage, and accessibility of user-generated content. As online communication expanded, concerns regarding the legal responsibility of intermediaries for unlawful content posted by users became increasingly significant.[6]
The Information Technology Act, 2000 defines an intermediary under Section 2(1) (w) as any person who, on behalf of another person, receives stores, transmits, or provides services relating to electronic records.[7] This broad definition encompasses internet service providers, social media platforms, search engines, online marketplaces, and web-hosting services. Given the enormous volume of content generated online, imposing direct liability upon intermediaries for all user-generated content would be impractical and would significantly impede the growth of digital services.[8]
The issue of intermediary liability gained prominence following Avnish Bajaj v. State (NCT of Delhi), commonly referred to as the Bazee.com case.[9] The controversy arose when an obscene video clip was listed for sale on the platform. Although the intermediary had not created the content, legal proceedings were initiated against its management. The case exposed the uncertainty surrounding intermediary liability and demonstrated the need for a clearer legal framework.
To address these concerns, the Information Technology (Amendment) Act, 2008 substantially revised Section 79 and introduced the concept of safe harbour protection.[10] The provision granted conditional immunity to intermediaries for third-party content provided they acted as neutral facilitators and complied with due diligence obligations. The objective was to balance the need for accountability with the practical realities of operating digital platforms.
Safe Harbour, Section 79 and the Shreya Singhal Framework
Safe harbour protection forms the foundation of intermediary liability law in India. Section 79 of the Information Technology Act, 2000 provides that intermediaries shall not be liable for third-party information hosted or transmitted through their platforms, provided they do not initiate transmissions, select recipients, or modify the information being communicated.[11] The immunity is further conditioned upon compliance with due diligence requirements prescribed under law.[12]
The rationale underlying safe harbour protection is closely connected to freedom of expression and technological innovation. If intermediaries were exposed to unlimited liability for user-generated content, they would be incentivized to remove large volumes of content to avoid legal consequences. Such a system would restrict free speech and discourage the development of digital platforms.[13]
A landmark development in this regard occurred in Shreya Singhal v. Union of India.[14] While striking down Section 66A of the Information Technology Act as unconstitutional, the Supreme Court also clarified the scope of intermediary liability under Section 79. The Court held that intermediaries are generally required to remove content only upon receiving a valid court order or lawful government notification. By interpreting the requirement of “actual knowledge” narrowly, the Court prevented intermediaries from becoming private adjudicators of legality and established important safeguards against arbitrary censorship.
The significance of Shreya Singhal lies in its recognition that unrestricted takedown obligations could create a chilling effect on freedom of expression. The judgment ensured that decisions affecting online speech remained subject to constitutional safeguards and judicial oversight rather than private discretion.
The Shift from Safe Harbour to Platform Accountability
Despite the protections recognized in Shreya Singhal, concerns regarding misinformation, cybercrime, online harassment, hate speech, and harmful digital content led to demands for stronger intermediary accountability. This resulted in the enactment of the Information T echnology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.[15]
The 2021 Rules significantly expanded intermediary obligations and introduced a distinction between ordinary intermediaries and Significant Social Media Intermediaries (SSMIs). Platforms with more than fifty lakh registered users were subjected to additional compliance requirements, including the appointment of a Chief Compliance Officer, Nodal Contact Person, and Resident Grievance Officer. Intermediaries were also required to establish grievance redressal mechanisms, publish compliance reports, and remove certain categories of unlawful content within prescribed timelines.
The Rules further introduced traceability obligations requiring certain messaging platforms to identify the first originator of information upon lawful governmental requests. While intended to combat serious offences such as terrorism and child exploitation, these provisions generated significant concerns regarding privacy and free speech.
Subsequent amendments further expanded intermediary responsibilities. The 2022 amendments established Grievance Appellate Committees (GACs) to review platform decisions, while the 2023 amendments addressed issues relating to online gaming and misinformation.[16] These developments collectively indicate a gradual transition from platform neutrality towards proactive content governance.
Free Speech, Algorithmic Regulation and Digital Gatekeeping
The regulation of intermediaries directly affects the exercise of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. In the digital age, online platforms have become primary forums for political discussion, social interaction, and democratic participation. Consequently, restrictions imposed upon intermediaries inevitably influence public discourse.[17]
The Supreme Court recognized the constitutional significance of internet-based communication in Anuradha Bhasin v. Union of India, holding that freedom of speech and expression through the internet enjoys constitutional protection.[18] The judgment emphasized that restrictions upon online communication must satisfy the requirements of legality, necessity, and proportionality.
Modern platforms increasingly rely upon algorithmic systems and artificial intelligence to identify, filter, priorities, and remove content. While such technologies improve efficiency, they often fail to appreciate context, satire, political criticism, or linguistic nuances.[19] As a result, lawful speech may be incorrectly restricted, while harmful content may evade detection. Furthermore, algorithmic moderation processes often lack transparency, making it difficult for users to understand why particular content has been removed or suppressed.
Another significant concern is the rise of private censorship. Traditionally, restrictions upon speech were imposed by the State and therefore subject to constitutional scrutiny. However, content moderation decisions are increasingly made by private platforms operating under their own policies and community guidelines. To avoid legal liability and regulatory sanctions, intermediaries may remove lawful content whenever uncertainty exists regarding compliance obligations. Such practices create a chilling effect on political criticism, dissent, satire, and journalistic reporting.
Critical Analysis: From Safe Harbour to Digital Gatekeeping
The contemporary intermediary liability framework reveals a significant departure from the safe harbour model envisaged under Section 79 and reinforced by Shreya Singhal. A major concern arises from the requirement that intermediaries make “reasonable efforts” to prevent prohibited content.[20] The absence of a clear definition of this phrase creates uncertainty regarding the extent of intermediary obligations and increases the risk of inconsistent enforcement.
The constitutional problem is not that intermediaries are expected to address unlawful content. Regulation of child sexual abuse material, cyber fraud, terrorism-related content, and deepfakes serves legitimate public interests. The difficulty arises when vague obligations encourage platforms to engage in excessive content moderation to avoid liability. In such circumstances, intermediaries may remove lawful content simply because retaining it poses regulatory risks.
This concern has been reflected in judicial and policy debates surrounding intermediary regulation. Cases such as X Corp v. Union of India and IndiaMart Intermesh Ltd. v. Puma SE demonstrate continuing uncertainty regarding the extent of intermediary obligations and the relationship between proactive moderation and safe harbour protection. Similarly, controversies surrounding governmental fact-checking mechanisms and executive advisories have intensified concerns regarding censorship, transparency, and accountability.
The cumulative effect of these developments is the transformation of intermediaries into digital gatekeepers. Unlike traditional intermediaries that merely facilitated communication, modern platforms increasingly determine which content remains visible, which content is removed, and which viewpoints receive prominence within the digital public sphere. Through algorithmic curation, content moderation policies, and regulatory compliance mechanisms, intermediaries exercise substantial influence over public discourse.
Therefore, while greater platform accountability may be necessary to address emerging online harms, regulatory measures must remain clear, proportionate, and consistent with constitutional safeguards. The continued expansion of intermediary obligations without adequate procedural protections risks undermining the balance established in Shreya Singhal and transforming private platforms into de facto regulators of online speech.
SUGGESTIONS
The changing rules around intermediary liability in India show the need for a fair regulatory approach that tackles online harm while protecting constitutional freedoms. While it is important for platforms to take responsibility to fight misinformation, cybercrime, deepfakes, and other illegal content, regulations should also include protections for freedom of speech and expression.
First, the Government should clearly define “reasonable efforts” in the Information Technology Rules. The current confusion leads to uncertainty about what intermediaries must do and encourages excessive content moderation. Clear rules would help reduce arbitrary enforcement and give platforms more legal certainty.
Second, the protections established in Shreya Singhal v. Union of India should be maintained and improved. Content removal should usually happen only after valid court orders or lawful government notices are issued. This would stop intermediaries from acting as judges of legality and cut down on arbitrary censorship.
Third, there should be more transparency in content moderation practices. Intermediaries need to give users clear reasons for removing content, suspending accounts, or limiting online visibility. They should also regularly publish transparency reports that detail government takedown requests and what actions the platforms took.
Finally, there should be more oversight of algorithmic content moderation. Automated systems often miss context, satire, and political criticism. Platforms should have clear moderation policies and review automated decisions regularly to reduce wrongful removals.
A regulatory framework focused on rights that combines responsibility, transparency, judicial oversight, and fairness will better address current digital harm while upholding the values of free speech and democratic participation. This approach would keep intermediaries responsible without allowing them to become unregulated digital gatekeepers.
CONCLUSION
The regulation of intermediaries has become one of the biggest legal and constitutional challenges in the digital age. Online platforms are now key spaces for communication, political participation, and public discussion. Because of this, the question of intermediary liability has gained significant importance. The concept of safe harbour under Section 79 of the Information Technology Act, 2000 was created to protect intermediaries from being held responsible for third-party content. It also aims to ensure the free flow of information and innovation in the digital landscape.
However, the regulatory environment has changed a lot with the introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the subsequent updates. These changes show a growing focus on platform accountability in response to issues like misinformation, cybercrime, hate speech, online harassment, and deep fake content. While these goals are valid, the increase in intermediary obligations has raised important issues about freedom of speech and expression under Article 19(1)(a) of the Constitution.
This study shows that the move from platform neutrality to proactive content governance has blurred the lines between intermediaries and content regulators. Vague obligations, such as making “reasonable efforts,” along with rising expectations for content moderation, may lead platforms to remove lawful content to avoid legal issues. Such actions could chill online speech and weaken the protections set by the Supreme Court in Shreya Singhal v. Union of India.
Thus, while regulating intermediaries is important to address harmful online content, it must follow constitutional principles of legality, proportionality, transparency, and due process. The future of intermediary liability in India should find a balance between holding platforms accountable and protecting fundamental rights. Only with a clear and rights-focused regulatory framework can India effectively tackle digital harms while upholding free speech, democratic participation, and the open nature of the internet.
Authored By- Khushi Jain
(Amity University Haryana)
[1] Aditi Chaudhary & Sanjana Mehta, Analysis of Intermediary Liability, 3 Indian J. L. & Legal Rsch. (2021).
[2] Rupali Agrawal, Intermediary Liability in the Context of Online Platform: Comparative Analysis of Different Legal Approaches, 5 Indian J. L. & Legal Rsch. (2023).
[3] Id.
[4] Aditi Chaudhary & Sanjana Mehta, Analysis of Intermediary Liability, 3 Indian J. L. & Legal Rsch. (2021).
[5] Aditya Gurjar, From Intermediaries to Gatekeepers: A Constitutional Inquiry into Content Moderation and Free Speech Online, 8 Indian J. L. & Legal Rsch. (2025).
[6] Aditi Chaudhary & Sanjana Mehta, Analysis of Intermediary Liability, 3 Indian J.L. & Legal Rsch. 1 (2021)
[7]The Information Technology Act, No. 21 of 2000, § 2(1) (w), India Code (2000) https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf .
[8] Rupali Agrawal, Intermediary Liability in the Context of Online Platform: Comparative Analysis of Different Legal Approaches, 5 Indian J.L. & Legal Rsch. (2023).
[9] Avnish Bajaj v. State (NCT of Delhi), (2008) 150 DLT 769 (Delhi HC) (India).
[10] The Information Technology (Amendment) Act, No. 10 of 2009, §79, India Code (2009) https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf .
[11] Information Technology Act, 2000, § 79(1)-(2), India Code (2009).
[12] Id.
[13] Aditi Chaudhary & Sanjana Mehta, supra note 6, at 6.
[14] Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
[15] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Gazette of India, pt. II, sec. 3(i) (Feb. 25, 2021).
[16] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022; Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
[17] India Const. art. 19, cl. 1 (a).
[18] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, (India).
[19] Aditya Gurjar, From Intermediaries to Gatekeepers: A Constitutional Inquiry into Content Moderation and Free Speech Online, 8 Indian J. L. & Legal Rsch. (2025).
[20] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Gazette of India, pt. II, sec. 3(i) (Feb. 25, 2021), §3(1) (b) (India).