Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Adequate Regulation of Intermediaries?

 The term ‘Intermediary’ has been defined in clause (w) of sub-section 1 of section 2 of the Information Technology Act, 2000 (“ IT Act”) as “any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

This is a very broad definition. This not only covers social media companies (e.g., Facebook, Twitter) but also a wide range of players in the internet ecosystem including search engines (Google Inc., Yahoo Inc.), online payment sites (Paypal, Phonepe), online-market place (Amazon, Flipkart), telecom service providers (Jio, Vi), and cyber-cafes. The definition applies to any company where the user has an identity in the intermediary in form of a unique account/number (though some intermediaries may not require prior registration for access), who accesses, uses, and interacts with other users (who may or may not be of the same kind) and the intermediary enables these interactions. Cyber-cafes would be an exception to this notional definition.

Read More: https://tlegal.com/blog-details/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-adequate-regulation-of-intermediaries

Regulation of Intermediary in India

Intermediaries did not have protection of safe harbour until 2008. That is, there was nothing in the IT Act which protected intermediaries from content posted by its users. This became clear in Avinash v State[1], where the managing director of an e-commerce company was charged with criminal provisions of the Indian Penal Code, 1860 for the content posted by third parties on the e-commerce company. The Delhi High Court observed that there was a requirement for widening the scope of protection given to intermediaries. Consequently, the IT Act was amended in 2008 to include a safe harbour regime under Section 79 of the IT Act, along with an amendment in the definition of intermediaries.

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