India - The Rise Of E-commerce And Intermediary Liability.
Legal News & Analysis - Asia Pacific - India - Regulatory & Compliance
10 December, 2019
In recent times, there has been a spate of litigation surrounding the e-commerce space and immunities afforded to intermediaries. As almost everything can now be selected and purchased online, the role and responsibilities of e-commerce companies hosting such platforms is exalted. However, the rise of e-commerce has also witnessed a rise in associated IPR violations among other unlawful and tortious acts in this space. The Indian courts and especially the Delhi High Court has been quite proactive and circumspect in adjudicating on these issues.
While in MySpace Inc. v. Super Cassettes Industries Ltd., [236 (2017) DLT 478], the Court emphasized on the need for safe harbour protection to intermediaries who follow notice and take down procedure with due diligence to not knowingly host any infringing content; in Christian Louboutin SAS v. Nakul Bajaj and Ors [2018(76) PTC 508(Del)], the Court observed that e-commerce platforms which actively conspire, abet or aide, or induce commission of unlawful acts on their website cannot go scot free. The Court made it clear that when an e-commerce platform becomes an active participant as opposed to merely being an intermediary, then it would automatically lose safe harbour protection. Such immunity can be provided to only passive transmitters of information on their platforms, which in the true sense is the role of intermediaries.
Thus, the protection afforded to intermediaries is not absolute and if they also initiate the transmission, select the receiver or select or modify the information contained in the transmission then they may lose the immunity to which they are otherwise entitled.
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Dheeraj Kapoor, LexOrbis