(a) Under what circumstances, can an intermediary be held liable for third party-content hosted by them? Explain the liability of…

(a) An intermediary is any person who, on behalf of another, receives, stores or transmits electronic records or provides a service with respect to them. This includes telecom and internet service providers, search engines, online marketplaces, social media platforms and cyber cafés (IT Act, 2000, s.2(1)(w)). Because intermediaries host vast volumes of third-party content, the law gives them conditional immunity ("safe harbour") rather than treating them as publishers.

Safe harbour: s.79 IT Act (substituted in 2009)

• The immunity: under s.79(1), an intermediary is not liable for third-party information, data or links it makes available or hosts, if it meets the conditions in s.79(2):
• its function is limited to providing access to a communication system (s.79(2)(a));
• it does not initiate the transmission, select the receiver, or select or modify the information (s.79(2)(b));
• it observes due diligence and the guidelines prescribed by the Central Government (s.79(2)(c)).

When an intermediary becomes liable (s.79(3))

1. Participation: it has conspired, abetted, aided or induced the unlawful act, by threats, promise or otherwise (s.79(3)(a)).
2. Knowledge and inaction: on receiving actual knowledge, or on being notified by the Government or its agency, that information on its resource is being used to commit an unlawful act, it fails to expeditiously remove or disable access (s.79(3)(b)).

• In ***Shreya Singhal v Union of India* (2015), the Court read "actual knowledge" to mean a court order or a government notification** relating to the grounds in Art 19(2), not private complaints. The Court also upheld the blocking power under s.69A with its procedural safeguards.
• For copyright, ***Myspace Inc v Super Cassettes* (Delhi HC Division Bench, 2016)** held that specific knowledge of particular infringing content suffices, and that there is no general duty to monitor. The Copyright Act, s.52(1)(c), and Rule 75 of the Copyright Rules, 2013 provide a 21-day notice-and-takedown system.

3. Loss of neutrality: an intermediary that takes an active role loses protection. Christian Louboutin v Nakul Bajaj (Delhi HC, 2018) held that an e-commerce platform that curated, stored and marketed goods was not a mere intermediary.
4. Failure of due diligence: failure to comply with the IT Rules removes safe harbour (Rule 7, IT Rules 2021). The platform is then liable like any other person under the IPC/BNS, the Copyright Act and other laws.
5. Blocking orders: failure to comply with blocking orders under s.69A is itself an offence.

Earlier cases

• Avnish Bajaj (Baazee.com, 2004–05): the prosecution of Baazee.com's managing director for an obscene video listed on the site exposed the weak immunity under the original s.79. This led to the 2008 amendment. The Supreme Court later quashed the proceedings, holding that a director could not be prosecuted without the company being arraigned (Aneeta Hada (2012)).
• ***Google India v Visaka Industries* (2019):** the pre-2009 s.79 protected intermediaries only against offences under the IT Act, not, for example, against defamation.

Contemporary developments

• IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:
• due diligence and user agreements (Rule 3);
• removal within 36 hours of a court order or government notice;
• removal of non-consensual intimate images within 24 hours;
• a grievance officer who acknowledges complaints within 24 hours and resolves them within 15 days;
• for significant social media intermediaries (5 million or more users), a Chief Compliance Officer, a nodal contact person, a resident grievance officer, monthly compliance reports, and identification of the first originator of messages (Rule 4(2)). The originator rule is under challenge by WhatsApp in the Delhi High Court as a threat to end-to-end encryption and privacy.
• 2022 amendment: created Grievance Appellate Committees.
• 2023 amendments:
• rules on online gaming;
• a government Fact Check Unit, whose notifications would strip safe harbour for content about "the business of the Central Government". The Bombay High Court struck this down in Kunal Kamra v Union of India (2024) as violating Arts 14 and 19.
• Blocking and takedown litigation:
• X Corp v Union of India (Karnataka HC): the 2023 challenge to blocking orders under s.69A was dismissed;
• in 2025 the High Court upheld the Sahyog portal, which various agencies use to send s.79(3)(b) notices, against X Corp's challenge.
• Deepfakes and synthetic content: MeitY advisories and draft amendments on labelling AI-generated content.
• Proposed and related laws: the proposed Digital India Act to replace the IT Act, the Digital Personal Data Protection Act, 2023, which covers data processing by intermediaries as data fiduciaries, and the Telecommunications Act, 2023.
• Global trends: the EU Digital Services Act (2022) moved from pure immunity to graded accountability.

Assessment: Indian law has moved from a passive-conduit model to conditional immunity plus due diligence. Intermediaries are liable when they participate, gain knowledge through court or government orders and fail to act, curate actively, or breach due diligence. The key constitutional tension is between curbing unlawful content and avoiding collateral censorship: over-removal driven by the fear of losing safe harbour, and executive takedowns without review.

(b) The problem. A media trial occurs when the media pronounce guilt or innocence, publish confessions, the accused's character or previous convictions, or evidence not yet tested, while a case is pending. The consequences are serious:

• it prejudices witnesses and judges, and can intimidate the defence;
• it violates the presumption of innocence and the right to a fair trial under Art 21;
• it damages the reputation of accused persons who may later be acquitted.

The Constitution must balance this against press freedom under Art 19(1)(a). Contempt of court is a permissible restriction under Art 19(2).

The Law Commission's 200th Report (2006) The report, "Trial by Media: Free Speech versus Fair Trial under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)", was prepared after cases like Jessica Lal and Priyadarshini Mattoo. Its main points are:

1. Diagnosis:

• publications that pre-judge guilt, or disclose confessions, previous convictions, character, or photographs where identity is in issue, create a real risk of prejudice;
• judges may be subconsciously influenced, witnesses may alter testimony, and public perception may make an acquittal appear wrong.

2. The gap in the Contempt of Courts Act, 1971:

• under s.3(2) read with the Explanation, a criminal proceeding is "pending" only from the filing of the charge-sheet or the issue of summons or warrant;
• so prejudicial publicity between arrest and charge-sheet, the period when it is most intense, fell outside contempt.
• The Commission recommended that pendency begin from the time of arrest.

3. Postponement orders:

• it recommended empowering High Courts to issue orders postponing publication of certain matters, or directing the media not to publish prejudicial material, in order to prevent a real and substantial risk of prejudice;
• such orders should be narrowly tailored and temporary.

4. Prejudicial categories:

• it listed publications that are prima facie prejudicial, as guidance for the media.

5. Training and self-regulation:

• journalists should be trained in the law on contempt, fair trial and privacy;
• the Press Council of India, the NBSA and the NBDSA should frame guidelines;
• the report did not propose a new statutory regulator.

Subsequent developments

• ***Sahara India Real Estate v SEBI* (2012): a Constitution Bench upheld the courts' power, under Arts 129 and 215 and their inherent jurisdiction, to make postponement orders** as a "neutralising device" where there is a real and substantial risk to the fairness of a trial. This substantially reflected the Commission's suggestion.
• ***Manu Sharma v State (NCT of Delhi)* (2010):** the Jessica Lal appeal. The Court cautioned that trial by media must not interfere with the presumption of innocence.
• ***R.K. Anand v Registrar, Delhi High Court* (2009):** sting journalism exposing witness tampering was upheld as serving justice. The media can also serve justice.
• ***Nilesh Navalakha v Union of India* (Bombay HC, 2021):** in the Sushant Singh Rajput coverage, the Court held that media trials during investigation may amount to contempt, and issued guidelines.
• Police media briefings: in PUCL v State of Maharashtra (2023), the Supreme Court directed the Home Ministry to frame a manual on police media briefings, to prevent selective leaks.
• Law Commission 274th Report (2018): on reviewing the Contempt of Courts Act, it advised against diluting the Act.

Analysis

• Strengths: the report correctly identified the timing gap, from arrest to charge-sheet, and chose targeted remedies, contempt and postponement, over censorship.
• Weaknesses:
• the key amendment (pendency from arrest) has not been enacted;
• self-regulation by broadcasters remains weak;
• digital and social media now dominate "trials";
• prior restraint risks chilling investigative journalism.
• Balance: the balance struck in Sahara is proportionality. Restrict only publications that create a real and substantial risk to a fair trial, and only for as long as necessary.

Media trials therefore can subvert justice. The Law Commission's calibrated approach, now partly judicially adopted, remains the right framework, but it needs legislative completion and an effective regulator for digital media.

(c) Risk and property. "Risk" means liability to bear the loss if goods are destroyed or damaged without anyone's fault. "Property" means ownership. The general rule is res perit domino (the loss falls on the owner).

The general rule: s.26, Sale of Goods Act, 1930

• Risk follows property: unless otherwise agreed, goods remain at the seller's risk until property passes to the buyer. Once property passes, the goods are at the buyer's risk whether delivery has been made or not.
• Link to property rules: property passes according to ss.18–24, depending on the parties' intention and on whether the goods are specific, ascertained or unascertained.
• Perishing: if specific goods perish without the knowledge of the seller before the contract, the contract is void (s.7). If they perish without fault of either party before risk passes, the agreement is avoided (s.8).

When risk and property separate

1. By agreement (the opening words of s.26):

• the parties may agree that risk passes before or after property;
• Martineau v Kitching (1872): risk of loss passed to the buyer under the contract even though property in the unweighed sugar had not passed;
• Sterns Ltd v Vickers Ltd (1923): the buyer of 120,000 gallons of white spirit from a larger quantity in a tank bore the risk of deterioration, although property had not passed because the goods were unascertained.

2. Delay in delivery (first proviso to s.26):

• where delivery is delayed through the fault of either party, the goods are at the risk of the party at fault for any loss that would not otherwise have occurred;
• Demby Hamilton v Barden (1949): the buyer delayed taking the apple juice, which went bad, and the buyer bore the loss;
• Pignataro v Gilroy (1919): the buyer delayed collecting goods already appropriated to the contract, and bore the loss when they were stolen.

3. Duties as bailee (second proviso): a seller or buyer holding goods as bailee of the other remains liable for negligence even though the risk is with the other party.
4. Sale on approval or "sale or return" (s.24):

• property, and therefore risk, generally passes only when the buyer signifies approval, does an act adopting the transaction, or retains the goods beyond the fixed or a reasonable time;
• until then the loss falls on the seller, unless the buyer is at fault (Elphick v Barnes (1880): a horse on approval died, and the seller bore the loss).

5. Transit (ss.39–40):

• delivery to a carrier is prima facie delivery to the buyer (s.39(1));
• the seller must make a reasonable contract of carriage (s.39(2)) and, for sea transit, give notice so that the buyer can insure, failing which the goods are at the seller's risk in transit (s.39(3));
• where the seller agrees to deliver at a distant place at his own risk, the buyer still bears the risk of deterioration necessarily incident to the transit (s.40).

6. Trade terms:

• FOB: risk generally passes when goods are shipped, even if property is reserved;
• CIF: risk passes on shipment, but property usually passes only when the shipping documents are transferred. The buyer must pay against the documents even if the goods have been lost at sea (Manbre Saccharine v Corn Products (1919)), and looks to the insurance.

Conclusion: Section 26 states a presumption, not an inflexible rule. Agreement, fault, bailment, and the conventions of trade and transit can place risk on one party while property rests with the other, exactly as the statement suggests.