Safe Harbor Provision: Conditional Immunity to Online Intermediaries

Mahima Khandelwal and Ankit Modi
IME Law College, Ghaziabad, Uttar Pradesh, India

Volume III, Issue IV, 2020

“In a democratic society, those who control the access to information have a responsibility to support the public interest…these gatekeepers must assume an obligation as trustee of a greater good.”

 – Shapiro

With the drastic shift in the paradigm of technology all across the world, it is unfathomable that India could remain untouched by it. There is a considerable rise in the number of digital intermediaries such as search engines and social media platforms on the internet which is profoundly affecting our way of communication.

With the large masses using these online platforms, they have a significant control of power in their hands which can be misused like in spreading terrorist propaganda or misinformation.  In the wake of such huge control of power in their hands, accountability for the content that is posted on their respective platforms also becomes notable. At the same time our constitution also enshrines freedom of right to speech and expression. Guaranteeing liberty to intermediaries is vital for the thriving online intermediaries industry.

The need of the hour is to balance both. Hence, the parliament has wisely incorporated provisions of Safe Harbor in The Information Technology Act, 2000.

This research paper is an attempt to look deeply into the aspects of Safe Harbor Protection. Since the protection of Safe Harbor is available to intermediaries, therefore at the outset, an attempt has been made to analyse the definition of an intermediary as defined under Section 2(w) of The Information Technology Act. The paper analyses the legal provisions in detail, which extend the protection of Safe Harbor to intermediaries. The paper further attempts to analyse various case laws where time and again, the judiciary has reaffirmed the constitutionality of this provision and gave clarity where there was ambiguity found in the provision.