Intermediary Safe Harbour under the IT Act

Intermediary safe harbour is a conditional exemption from liability for unlawful third-party information carried, stored or hosted by an intermediary. Under Section 79 of the Information Technology Act, 2000, it protects a qualifying intermediary that performs a limited or neutral role and observes prescribed due diligence. It is not blanket immunity for the intermediary's own unlawful conduct.

Scope of the protection

Under Section 2(1)(w), an intermediary receives, stores or transmits an electronic record on another person's behalf, or provides a related service. The definition includes internet and network service providers, web-hosting services, search engines, online marketplaces and cyber cafes.

• Safe harbour covers third-party information, data or communication links made available or hosted through the intermediary.
• It prevents automatic liability for user material but does not make that material lawful.
• Loss of the exemption does not itself establish liability; liability must still arise under the applicable substantive law.

Conditions under Section 79(2)

Protection under Section 79(2) depends on the intermediary's limited or neutral role and compliance with government-prescribed due diligence.

• Its function must be limited to providing access to a communication system through which third-party information is transmitted, temporarily stored or hosted; alternatively, it must satisfy the specified neutral-transmission conditions.
• For the relevant transmission, it must not initiate the transmission, select its receiver, or select or modify the information.
• It must observe due diligence under the 2021 Rules, including applicable duties concerning user rules, grievance redressal and compliance with valid legal directions.
• Additional obligations may apply to particular categories of intermediaries under the Rules.

When safe harbour becomes unavailable

Under Section 79(3), protection is unavailable where the intermediary participates in the unlawful act or fails to respond to legally valid knowledge of unlawful material.

• The exemption is lost if the intermediary conspires, abets, aids or induces an unlawful act, including through threats or promises.
• It may be lost if the intermediary fails expeditiously to remove or disable access after legally valid knowledge, without vitiating relevant evidence.
• In Shreya Singhal v. Union of India (2015), the Supreme Court held that such knowledge must arise from a court order or notification by the appropriate government or its agency, not merely from a private complaint.
• The removal direction must conform to the grounds in Article 19(2); non-observance of prescribed due diligence also makes the Section 79 exemption unavailable.