Information Technology Act, 2000
Important Cases on Intermediary Safe Harbour: Section 79 Case Law
Section 79's text is short; its content is case law. The prosecution of a marketplace's managing director forced the 2008 recast, a constitutional challenge fixed what knowledge means, the Delhi High Court drew the monitoring and active-role lines for copyright and commerce, and the current litigation tests the conditions rather than the section. Topics 67, 89 and 99 carry the doctrine; this note, as asked, is the dedicated case digest.
1. The Case Line
Figure 1: From bazee to the rules litigation
📖 Shreya Singhal v. Union of India, (2015) 5 SCC 1 (on s.79) Context: Alongside the s.66A challenge, s.79(3)(b) and the 2011 Guidelines' takedown clause were attacked: intermediaries judging legality on private complaints would privately censor speech. Held: s.79(3)(b) read down: actual knowledge means knowledge through a court order or notification by the appropriate government or its agency, and the restriction must relate to the Article 19(2) subjects. The intermediary is not to adjudicate millions of private requests; the order-based trigger protects both the platform and the speech (Topics 59, 67). |
📖 Christian Louboutin SAS v. Nakul Bajaj, (2018) Delhi High Court Context: A luxury marketplace claimed intermediary status for listings bearing the plaintiff's marks; the court catalogued the platform's real functions, seller selection, promotion, quality assurance, logistics, branding. Held: s.79 belongs to the passive conduit: an e-commerce platform whose active participation facilitates infringement cannot claim the exemption, and duties of seller disclosure and listing removal follow, the active-passive line every marketplace case now applies (Topic 89). |
- Avnish Bajaj v. State (Del HC, 2005). The bazee.com obscene listing prosecution: the managing director's arrest and the court's wrestling with liability for a user's listing exposed the original s.79's narrowness, confined to network service providers and proof of diligence, and drove the 2008 recast into the modern conditional exemption; the related personal prosecution ultimately failed for want of the company's arraignment, and the episode's obscenity branch ended in Sharat Babu Digumarti (Topic 84)
- MySpace v. Super Cassettes (Del HC DB, 2016). Copyright and s.79 read harmoniously: the s.81 proviso does not strip hosting platforms of the harbour, knowledge means specific, identified works notified with particulars, and there is no general obligation to monitor uploads, India's notice-and-takedown charter for user content (Topics 67, 90)
- Kent RO v. Amit Kotak (Del HC, 2017). An intermediary is not obliged to screen or adjudicate every IP complaint across its platform: removal follows court orders and specific statutory notice, not a rights-holder's demand that the platform police rivals, the complement to MySpace.
- Swami Ramdev v. Facebook (Del HC, 2019). Defamatory content uploaded from India may be ordered removed globally, Indian courts' orders not stopping at geo-blocking for such uploads, while content uploaded abroad is disabled for Indian access, the territorial-reach precedent (Topic 120)
- Google India v. Visakha Industries (SC, 2019). On the pre-2009 s.79: the original provision protected only against liability under the IT Act and did not shield a network service provider from IPC defamation prosecution; the Court contrasted the amended, wider harbour, confirming the 2008 recast's significance.
- The rules litigation (2021 onward). The battlefield moved to the conditions: traceability (WhatsApp), the GAC's State review of moderation, the FCU clause struck down in 2024, and the Sahyog-route blocking challenges, each testing what due diligence may constitutionally demand (Topics 77, 79, 81)
2. Quick Revision
Figure 2: One line per case
⚠ Exam trap Cite each case for its own point and no more: Avnish Bajaj for the pressure that produced the 2008 recast, Shreya Singhal for ordered knowledge, MySpace for specific notice and no general monitoring in copyright, Kent RO for no unbidden screening, Louboutin for the active marketplace, Ramdev for global takedown of Indian uploads, and Visakha for the narrowness of the pre-amendment harbour. And keep the chronology straight across the 2008 divide: pre-amendment cases construe a different, narrower section, which is exactly what Visakha holds. |
3. Frequently Asked Questions
4. Related Topics
- Topic 67: Section 79. The doctrine these cases built.
- Topic 99: Safe Harbour vs Absolute Immunity. The design they calibrate.