The concept of intermediary liability under the Information Technology Act, 2000 (“IT Act”) first germinated at a time when intermediaries, broadly defined to include persons who, on behalf of another person, receive, store or transmit electronic records or provide services in relation to such records , were largely perceived as passive facilitators enabling access to information. Consequently, India’s intermediary liability framework was originally built on the understanding that digital platforms should be shielded from automatic liability arising out of third-party content.
This principle found legislative expression in Section 79 of the IT Act, commonly referred to as the “Safe Harbour” provision, which grants intermediaries immunity from liability in respect of third-party information or data hosted on their platforms.
Significantly, even the exception to such immunity under Section 79(3)(b) of the IT Act, which provides that safe harbour protection may be lost where an intermediary, upon receiving “actual knowledge” of unlawful activity, fails to expeditiously remove or disable access to such material, was substantially narrowed by the Hon’ble Supreme Court in Shreya Singhal v. Union of India. The Court read down the expression “actual knowledge” to mean only knowledge arising pursuant to a court order or a notification issued by the appropriate government or its authorized agency. Consequently, private legal notices or takedown requests were held insufficient to constitute “actual knowledge” for the purposes of Section 79. The Court recognized that compelling intermediaries to act upon every private allegation of illegality would inevitably incentivize indiscriminate takedowns.
Conceptually, the Shreya Singhal framework appeared to strongly reinforce intermediary immunity in India. However, over the years, the practical role played by digital platforms has evolved significantly across the broader digital ecosystem.
Today’s ecommerce platforms are far removed from the passive intermediaries originally contemplated under the IT Act. Modern marketplaces influence discoverability and commercial success through sponsored listings, algorithmic recommendations, targeted advertising and integrated logistics systems. Food aggregation and social media platforms similarly shape visibility and consumer behaviour through ranking systems, recommendation algorithms and monetization tools.
This commercial evolution raises an important question as to whether platforms exercising such significant operational and commercial control can continue claiming the same level of immunity originally intended for passive intermediaries. This shift became particularly visible in the Delhi High Court’s decision in Christian Louboutin SAS v. Nakul Bajaj . The Delhi High Court adopted a commercially realistic approach while examining the platform’s functioning. The Court observed that where an intermediary plays an active role in the transaction process, including through advertising, promotion, guaranteeing authenticity, facilitating payments, packaging products or materially participating in commerce, it may cease to function as a mere intermediary entitled to blanket safe harbour protection.
What makes Christian Louboutin particularly compelling is the layered manner in which the Delhi High Court approached intermediary liability. The judgment did not examine Section 79 of the IT Act in isolation, but instead undertook a harmonized reading of the safe harbour framework alongside the substantive rights and remedies available under the Trade Marks Act, 1999 (“TM Act”). In doing so, the Court carefully distinguished the free speech driven context of Shreya Singhal from cases involving trademark infringement and counterfeiting, while drawing from MySpace Inc. v. Super Cassettes Industries Ltd. to reiterate that safe harbour operates as a limited affirmative defence and not blanket immunity.
Significantly, while interpreting Section 81 of the IT Act, which provides that the IT Act would prevail over inconsistent laws, the Court examined whether intermediaries could rely upon the overriding effect of the IT Act to contend that trademark remedies stand excluded once safe harbour under Section 79 is invoked. The Court rejected this proposition and clarified that the provisions of the TM Act are not inconsistent with the IT Act. In this context, the Court held that Sections 29, 101 and 102 of the TM Act remain relevant in determining whether an intermediary can be said to be “conspiring, abetting, aiding or inducing” unlawful activity under Section 79(3)(a). The judgment further recognized that use of a trademark by an ecommerce platform in relation to counterfeit or non-genuine goods including through advertisements, invoices, packaging, authenticity representations or promotional activities, could itself amount to trademark use, falsification and aiding infringement, thereby disentitling the platform from claiming safe harbour protection under Section 79.
Another manifestation of the increasing responsibilities being cast upon intermediaries is reflected in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026 (“Rules”). The amendments move considerably beyond the traditional conception of intermediaries as passive conduits by imposing heightened obligations relating to monitoring, identification and expeditious removal of unlawful content. Intermediaries are now expected to implement tighter compliance mechanisms, including content labelling, metadata preservation and accelerated takedown timelines for certain categories of unlawful material. At the same time, the Rules attempt to preserve the safe harbour framework by clarifying that good faith removals undertaken pursuant to the Rules would not by themselves deprive intermediaries of protection under Section 79 of the IT Act.
In many ways, the 2026 amendments expose the growing tension at the heart of India’s intermediary liability framework. While Shreya Singhal sought to protect intermediaries from becoming private adjudicators of legality by limiting “actual knowledge” to court or government notifications, the amended Rules simultaneously move towards a model that expects increasingly proactive platform governance. This shift reflects the commercial reality that digital platforms today no longer function as mere passive facilitators, but increasingly shape visibility, consumer behaviour, commercial outcomes and even the amplification of infringing content.
The intermediary liability debate in India is, therefore, no longer confined to a simple “notice and takedown” framework. It increasingly concerns identifying the point at which a platform ceases to be a passive facilitator and assumes an active role in the underlying commercial or infringing activity.
About the author:
Shruhita Amit, Partner
Shruhita Amit is a Partner in the Trademarks practice at Rahul Chaudhry & Partners. She brings over 13 years of experience in trademark prosecution, oppositions, cancellations, enforcement, brand protection, trademark disputes, pre-litigation strategy, IP transactions and general IP advisory, with experience across diverse industries.
