We are living in a digital era in which the use of the internet is scaling new heights every day which has, in turn, increased our dependence on the different types of search engines, applications, and social media applications for finding the way to a location, recipes for a dish as well as posting our vacation pictures on the internet. The social media apps and search engines act as intermediaries to provide a platform to the third parties to disseminate their information regarding the sale of their products post their views about a certain political topic and use the platform as an intermediary for another end number of reasons. The law which governs the intermediaries is Information Technology Law, 2000 and defines ‘intermediary’ in Section 2 (w) of the act as concerning any particular electronic records, which means any person who on behalf of another person receives, stores or transmits that record or provides any service concerning that record.
The increased use of the internet has also attracted its own set of challenges in the form of cyber crimes like online phishing, dissemination of fake news and obscene materials, and another end number of criminal offences that are ever-increasing with the increased use of the internet. There has been a new trend of filing defamation cases involving huge sums of amounts claimed as damages due to some false tweet or post about a powerful person.
REGULATIONS FOR THE PROPER FUNCTIONING OF THE INTERMEDIARIES:
The Information Technology Act, 2000 and The Information Technology (Intermediaries Guidelines) Rules, 2011 rules govern the liability of the intermediaries in cases of any commission of an offence.
Section 79 of the act provides for the immunity or safe harbor from liability for the intermediary for any type of third party content that is made available through an intermediary in following cases:
- The function of the intermediary is limited to only provide access to their communication system over which information is transmitted.
- The intermediary does not initiate, select the receiver and select/modify the information contained in the transmission.
- The intermediary observes due diligence while discharging his duties.
The 2011 rules also provide some procedures that are needed to be followed by an intermediary:
- Informing users of the computer source about any harmful or prohibited information.
- The requirement of acknowledging, responding, or initiating action within 36 hours of receiving any grievance concerning prohibited information.
- Disable the information that is contrary to law.
INTERMEDIARY LIABILITY IN COPYRIGHT LAW:
There is growing dissemination of pictures, movies, books, and many other things that are amounting to copyright infringement all over the internet and the infringement has further increased after the Covi-19 when everyone was at home and they needed something to enjoy. The proviso to the Section 52, Copyright Act, 1957 provides that if a person responsible for the storage of the copyrighted material receives a written complaint from the owner of the copyrighted work complaining about the infringement, the person shall refrain from providing access to such information for a period of 21 days or till the period he receives an order from a competent court. If the person has not received any order till the expiry of 21 days, then he can continue providing access to such information.
So, the intermediaries can enjoy the dissemination of the copyrighted material till the time they receive a notice regarding taking down the copyrighted material.
PROBLEMS WITH THE SYSTEM:
Some major aspects like the kind of content not permitted, the kind of action that intermediary is ought to take in case of prohibited content, etc. The lack of clarity has led the intermediaries to form their own rules and procedures for taking down content from their platform to avoid any kind of liability from the government. This has also lead to the intermediaries showing partiality while taking down content from their platform like the ban on Donald Trump’s social media accounts, promoting the ideology of a certain wing of the society. The government has been promoting their ideology and has been sending notices to the platforms in a very increased manner to take down content and social media accounts for their critics claiming it to be for public safety, for example- taking down the accounts of the farm bill protesters from the Twitter. If there is a proper law for the regulation of the content, the intermediaries could be easily made liable in the courts for the wrong done and without law, the government is providing them with a safe space to frame their own procedures.
So, a full-fledged act to regulate the activities concerning the content on the web and intermediary accountability is the need of the hour.
 ‘Takedown Notice of Infringing Content over Internet in India’ (SS Rana & Co.) https://ssrana.in/ip-laws/copyright-law-india/take-down-notice-under-indian-law/ accessed on 18 February 2021
 Smitha Krishna Prasad, Rakhi Jindal, and Vivek Kathpalia, ‘Intermediaries- Messengers or Guardians? How India and US deal with the Role and Liability of Intermediaries.’ (Mondaq, 28 February 2019) https://www.mondaq.com/india/copyright/784524/intermediaries-messengers-or-guardians-how-india-and-us-deal-with-the-role-and-liability-of-intermediaries accessed on 18 February 2021.