Intermediary liability rules: A not-so-safe harbour?

The Ministry of Electronics and Information Technology has released a draft of the proposed Information Technology Intermediaries Guidelines (Amendment) Rules, 2018, under section 79 of the Information Technology Act, 2000, for public consultation and feedback.

An intermediary, in the rules, is defined as an entity which, “…on behalf of another person receives, stores or transmits” a “record” or provides any related service. The definition can encompass entities such as internet service providers, telecom companies, cloud services providers to search engines, social media providers, messaging companies, and e-commerce and payment platforms.

Safe harbour protection

While the intermediaries may publish, transmit, store or aggregate information, they do not usually generate, review or select it – this is often impossible, given the sheer volumes of information involved, and that much of it is encrypted. Therefore, the intermediaries run the risk of being penalized for information that they merely transmit.

Cyril Amarchand Mangaldas is India’s largest full-service law firm. Arun Prabhu is a partner at the firm.