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, an intermediary is generally not liable merely because users employ its service to transmit or publish such information, provided it maintains a neutral role and fulfils statutory due-diligence obligations. It is not blanket immunity for the intermediary’s own unlawful conduct.

Who and what are protected

An intermediary is a person who, on behalf of another, receives, stores or transmits an electronic record or provides a related service. The statutory definition includes entities such as internet and network service providers, web-hosting services, search engines, online marketplaces and cyber cafés.

• The protection covers third-party information, data or communication links made available or hosted through the intermediary.
• Safe harbour prevents automatic liability for user-generated or user-transmitted material; it does not determine whether the material itself is lawful.
• Loss of safe harbour only removes the exemption; liability must still be established under the applicable substantive law.

Conditions for claiming safe harbour

Section 79 protects an intermediary only when its role satisfies the neutral-function requirements in Section 79(2) and it observes due diligence prescribed by the Central Government.

• Its function must fall within the statutory conditions concerning access to a communication system through which third-party information is transmitted, temporarily stored or hosted.
• For the relevant transmission, it must not initiate the transmission, select its receiver, or select or modify the information contained in it.
• It must comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including applicable duties concerning user rules, grievance redressal and compliance with valid legal directions.
• Additional due-diligence requirements may apply to particular categories of intermediaries under the Rules.

When the protection can be lost

Section 79(3) withdraws the exemption where the intermediary participates in the unlawful act or fails to act after legally valid knowledge of unlawful content. Failure to observe the due-diligence rules can also make the Section 79 exemption unavailable.

• Safe harbour is unavailable if the intermediary conspires, abets, aids or induces the commission of an unlawful act, including through threats or promises.
• It can be lost if the intermediary fails expeditiously to remove or disable access to unlawful material after receiving legally valid knowledge, while preserving relevant evidence.
• In Shreya Singhal v. Union of India, the Supreme Court read down Section 79(3)(b): the relevant knowledge must arise through a court order or a notification by the appropriate government or its agency, not merely through a private complaint.
• A court order or government notification directing removal must conform to the grounds specified in Article 19(2) of the Constitution.
• Non-compliance with prescribed due-diligence obligations makes the intermediary liable to have its conduct examined under otherwise applicable law without the benefit of Section 79.

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