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

Intermediary liability An intermediary can be held liable for third-party content when it ceases to be a passive conduit and becomes an active participant by originating, selecting, editing, recommending, or profiting from specific content; when it receives actual knowledge from a court or government order and fails to expeditiously remove or disable access; or when it does not follow due diligence. Section 79 of the IT Act, 2000 provides a conditional safe harbour: the intermediary must not originate or control the information, must observe due diligence, and must act on actual knowledge. Shreya Singhal v. Union of India (2015) struck down Section 66A as overbroad and prevented intermediaries from being treated as publishers merely for hosting. Myspace Inc. v. Super Cassettes (2017) clarified that “actual knowledge” means specific notice of particular infringing content, not general awareness, so there is no vague duty to monitor. The causal chain is: hosting alone does not create liability; specific knowledge plus inaction, or active editorial control, converts the intermediary into a publisher-like actor. Rule 3 of the IT Rules, 2011 required due diligence and grievance redressal. Section 52 of the Copyright Act gives a notice-and-takedown safe harbour to online service providers. Contemporary developments include the IT Rules, 2023 compliance framework, proposed amendments in the Digital India Act, and the DPDP Act, 2023, which regulates personal data rather than third-party content liability, showing parallel but distinct accountability.

Media trials Media trials arise when pre-trial publicity, identification of the accused, or media verdicts prejudice witnesses, judges, or public confidence in sub-judice matters. The constitutional tension is between Article 19(1)(a), which protects free speech, and Article 21, which guarantees a fair trial. In Sakal Papers, prior restraint was held exceptional; in R. Rajagopal, public officials can be reported subject to public interest; in Sahara India, courts can restrain prejudicial reports where prejudice is likely. The Law Commission’s 200th Report (2006) on “Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure” analysed this risk. It recommended that postponement orders be used sparingly, that contempt powers be calibrated to prevent a real and substantial risk to justice, and that a regulatory body or code of conduct could enforce responsible reporting without prior restraint. The report thus balances press freedom with the accused’s right to an impartial trial. It treats media trial as a subversion of justice only where prejudicial publicity is likely, not as a ban on reporting.

Passing of risk Under the Sale of Goods Act, 1930, risk and property are not inseparable. Section 26 avoids the contract if specific goods perish before risk passes; Section 27 avoids it if specific goods perish after agreement but before risk passes. Sections 28 to 30 allocate risk: prima facie, risk follows property, subject to agreement, retention of disposal rights, and delay attributable to buyer or seller. The maxim res perit domino is therefore modified. The exception to res perit domino appears in delivery on sale or return under Section 24, where risk may pass to the buyer on delivery even before acceptance; goods on approval, where risk and property may be separated by delivery or acceptance; and Sterns Ltd v. Vickers Ltd, where risk passed before property because of the contract’s terms. Thus, the passing of risk depends on contractual allocation, not merely ownership.

Conclusion These rules show that liability and risk follow control, prejudice, and allocation: intermediaries are liable when they control or know of content, media can subvert justice only through likely prejudice, and commercial risk may move independently of property. A proportionate, context-specific approach is the way forward.