Intermediary vs Publisher: Safe Harbour and the Content Divide

The whole architecture of online content liability turns on one classification: an intermediary carries other people's content and is shielded while it stays passive, a publisher stands behind its own and answers for it. The line decides safe harbour, the applicable rules and the liability. Topics 67, 79 and 80 built both sides; this note, as asked, is the dedicated comparison.

1. Conduit and Author

Figure 1: The carrier against the creator

• Intermediary. Defined by s.2(1)(w): one who on another's behalf receives, stores or transmits a record or provides a service over it, networks, hosts, search engines, marketplaces, social media; it carries third-party content and claims the s.79 safe harbour while it stays passive and keeps its due diligence (Topic 67)
• Publisher. One who chooses, creates or stands behind its own content: a digital news outlet, an OTT platform's own catalogue, any speaker publishing its own material; it has no safe harbour, because the content is its own, and answers for it directly (Topic 80)
• The governing difference. The intermediary is a conduit, the publisher an author or curator: safe harbour exists for carrying others' speech, not for one's own, which is the whole reason the two are treated apart.

2. The Divide in Operation

• The active-role line. An intermediary that selects, promotes, modifies or participates in the content crosses toward the publisher side and forfeits s.79, the active-passive test of Christian Louboutin and the s.79(2) conditions (Topics 89, 117)
• Part II against Part III. Intermediaries are governed by Part II of the 2021 Rules and the due-diligence regime; digital news publishers and OTT platforms are governed by Part III, with its Code of Ethics and the three-tier grievance mechanism, a different regulator and a different logic (Topics 73, 80)
• The same entity, both roles. A platform can be an intermediary for user uploads and a publisher for its own posts: the classification follows the content, not the company, so a single service may wear both hats on different material.
• Knowledge against authorship. The intermediary's liability turns on knowledge, acting on a court or government order (Shreya Singhal); the publisher's is primary, arising from authorship itself, with no knowledge threshold to cross (Topics 59, 67)

3. Frequently Asked Questions

What is the difference between an intermediary and a publisher?

An intermediary under Section 2(1)(w) receives, stores or transmits third-party content or provides a service over it, and claims the Section 79 safe harbour so long as it stays passive and observes due diligence; its liability turns on knowledge through a court or government order. A publisher chooses, creates or stands behind its own content, has no safe harbour, and answers for it directly as a matter of primary liability. Intermediaries are governed by Part II of the 2021 Rules, digital news and OTT publishers by Part III, and the same entity can be an intermediary for user uploads and a publisher for its own posts, since the classification follows the content.

4. Related Topics

• Topic 67: Section 79. The safe harbour the intermediary enjoys.
• Topic 80: Part III IT Rules. The publisher regulation regime.