Safe harbour in India: Revisiting intermediary liability

The removal of a Facebook post featuring Prime Minister Narendra Modi brought “safe harbour” into public discussion. Reports that Meta may lose its safe-harbour protection under the Information Technology Act, 2000 (IT Act) prompt a review of India’s legal framework for intermediary liability.

For platforms like Facebook and Instagram, the sheer volume of user-generated content makes it impracticable to subject a platform to the same liability as the person who creates each piece of content. Section 79 provides a statutory safe harbour for intermediaries.

Liability protection under section 79

Section 79(1) provides that an intermediary will not be liable for third-party information, data or communication links made available or hosted through its service, provided the conditions in sections 79(2) and 79(3) are satisfied. Section 79(2) provides that the intermediary must either be limited to providing access to a communication system through which third-party information is transmitted or must not initiate the transmission, select its receiver, or select or modify the information contained.

It must also observe the prescribed due diligence under the IT Act and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Rule 3(1)(b) requires intermediaries to make reasonable efforts to prevent users from hosting, displaying, uploading or sharing prohibited information. Rule 3(1)(d) requires an intermediary, when receiving actual knowledge through a court order or government notification, to remove or disable access to unlawful information. This prevents intermediaries from having to determine the legality of disputed user-generated content over private complaints.

Section 79(3) safe harbour limits

Section 79(3) provides that the exemption will not apply where the intermediary has: (1) conspired, abetted, aided or induced the commission of an unlawful act; or (2) actual knowledge, or is notified by the appropriate government or its agency, that information hosted on its platform is being used to commit an unlawful act and fails to expeditiously remove or disable access to that information without vitiating the evidence.

Thus, section 79 is a statutory shield; while it applies, an intermediary is protected from liability arising from third-party content. Once the protection is unavailable, the intermediary may be proceeded against under the law applicable to the underlying content or conduct, but liability must still be established. Therefore, loss of safe harbour is not itself a finding that the intermediary is liable.

Evolving intermediary duties reshape safe harbour

The role of intermediaries has evolved with the internet. Platforms today host vastly greater volumes and varieties of content. At the same time, developments such as algorithmic recommendation, synthetic media and content-moderation systems have expanded the ways platforms interact with user-generated content. The regulatory framework has developed alongside these changes. On 20 February 2026, amendments to the above-mentioned IT rules illustrate this progression. The amendments introduced a specific framework for synthetically generated information, requiring user declarations, verification and labelling.

The regulatory framework continues to evolve. On 30 March 2026, the Ministry of Electronics and Information Technology published draft amendments to the IT rules, which are under consultation, proposing to formalise intermediary obligations for government-issued clarifications/directions, requirements for user communication and compliance, and digital media oversight. The obligations applicable to platforms continue to expand as the nature and scale of online content changes.

The Meta episode highlights the need to revisit safe harbour. Protection from liability for third-party content remains unchanged. What is changing is the regulatory framework around that protection, as platforms assume structured responsibilities for the content hosted and distributed. The continuing question will be how safe harbour, intermediary due diligence and the responsibilities of online platforms operate together as the digital ecosystem becomes increasingly complex.

Ashima Obhan is a senior partner and Urvi Singh is an associate at Obhan Mason