Intermediaries, Safe Harbour and Takedown

In one line

A platform is not liable for what its users post, so long as it stays passive, does what it is told by a court or the Government, and follows the rules; and the question the whole subject turns on is who decides what comes down.

In the wording a student can write in an exam: section 79(1) of the Information Technology Act 2000 provides that an intermediary shall not be liable for any third party information, data, or communication link hosted by him; section 79(2) makes that immunity conditional on the intermediary's function being limited to providing access, or on its not initiating the transmission, selecting the receiver or selecting or modifying the information, and on its observing due diligence and such guidelines as the Central Government may prescribe; and section 79(3) withdraws the immunity where the intermediary conspired, abetted, aided or induced the unlawful act, or where, upon receiving actual knowledge, it fails to expeditiously remove or disable access to the material, that second limb being read down in Shreya Singhal v. Union of India to a court order or a notification by the appropriate government or its agency confined to unlawful acts relatable to Article 19(2).

Why safe harbour exists

An intermediary carries other people's speech. If it were liable for everything it carried, it would face an impossible choice: read everything, which is not possible at scale, or remove everything complained of, which is censorship performed by a private company with no interest in the speaker's rights and every interest in avoiding liability.

Safe harbour solves that by making liability conditional on behaviour rather than on content. The platform is immune while it stays passive; it becomes liable when it participates in the wrong or when it defies a lawful order. That structure is what keeps the decision about lawfulness with a court or the State rather than with a company.

Which is exactly why the read-down in Shreya Singhal matters so much. Section 79(3)(b) as enacted removed the immunity upon receiving actual knowledge, and if a complaint were actual knowledge, then every complaint would force the platform to decide lawfulness on pain of liability, and the rational response would be to remove first and ask nothing. The Court's reading down puts the decision back where it belongs.

Section 79 in terms

79(1). Notwithstanding anything contained in any law for the time being in force but subject to sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link hosted by him. The Explanation defines third party information as any information dealt with by an intermediary in his capacity as an intermediary.