Responsabilidad de intermediarios

Panel Summary | Intermediary Liability and Freedom of Expression in India

Summary of the Roundtable on Comparative Legislation Regarding Freedom of Expression in India. Intermediary Liability and Complaints Appeal Committees: How India’s IT Rules Are Reshaping Online Discourse.

By Josefina Gálvez

1. Background

The session examined how India regulates the liability of online intermediaries, focusing on the Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media) of 2021 (IT Rules) and the Grievance Appellate Committees (GACs) established in 2022. The presentation identified two primary sources of law: the Constitution of India and the Information Technology Act, 2000 (IT Act). Article 19(1)(a) of the Constitution protects freedom of speech and expression, which the Supreme Court has interpreted as encompassing the right to know. Article 19(2) permits reasonable restrictions only on specific grounds: the sovereignty and integrity of India, national security, friendly relations with foreign states, public order, decency or morality, contempt, defamation, and incitement to an offense. It was emphasized that it is up to the courts to determine what is “reasonable.”

2. Legal Framework for Intermediary Liability

It was noted that the IT Act defines “intermediary” in a broad and open manner (section 2(1)(w)). The definition was described as encompassing any person situated between the creator and the recipient of a record, including internet and network service providers, web hosting services, search engines, online marketplaces and payment sites, and internet cafes. Section 79 establishes a safe harbor for third-party content. The protection applies only when the intermediary acts as a passive conduit and observes due diligence and the guidelines prescribed by the central government. This protection is lost if the intermediary conspires or colludes in an unlawful act. It is also lost if, after receiving “actual knowledge” or a notice from the “appropriate government,” the intermediary fails to promptly remove or disable access to the content. It was explained that the reference to the “appropriate government” stems from the fact that policing is a state—not a federal—jurisdiction.

In Shreya Singhal v. Union of India (2015), the Supreme Court declared Section 66A (offensive messages) unconstitutional on the grounds that it was vague and arbitrary. Furthermore, it interpreted Section 79(3)(b) restrictively (read down), holding that “actual knowledge” is equivalent to knowledge of a court order, and that court orders and government notifications must strictly conform to the matters set forth in Article 19(2). The Court’s reasoning was that intermediaries should not be required to judge the legitimacy of millions of requests. The judgment also noted that this approach had gained acceptance in other countries and cited Argentina as a pioneer (para. 122). It was emphasized that the case was decided under the 2011 Rules.

The 2021 IT Rules were described as delegated legislation issued by the Ministry of Electronics and Information Technology rather than by Parliament. A first draft was circulated in 2018, and the Rules were amended several times. Part II establishes due diligence obligations (Rule 3(1)), the complaint mechanism (Rule 3(2)), and due diligence regarding synthetically generated information (Rule 3(3)), as well as additional duties for significant social media intermediaries (Rule 4). Rule 7 provides that an intermediary that fails to comply with the Rules loses the exemption under Section 79(1) and is liable under any applicable law, including the IT Act and the Bharatiya Nyaya Sanhita of 2023. The speaker described it as “a huge sword” that is rarely applied.

3. Grievance Mechanism and Grievance Appeal Committees

Under the IT Rules, the user or victim must first file a grievance with the intermediary’s grievance officer, whose contact information must be publicly available. The mechanism was introduced as a response to platform terms that directed users to seek arbitration abroad, and as a way to ensure that disputes can be resolved in India. The timeframes depend on the type of content: 2 hours for intimate, sexual, or identity-theft content (including manipulated images), 36 hours for removal requests under Rule 3(1)(b) (with the listed exceptions), and 7 days for all other complaints. It was noted that a 2-hour deadline leaves little room for deliberation. Significant social media intermediaries—which the presenter defined as those with approximately more than 5 million users in India—must also designate officers residing in India: a chief compliance officer, a nodal contact person, and a resident complaints officer. They also have duties to identify the original originator of certain messages, label AI-generated content, deploy proactive tools against child sexual abuse and sexually explicit content, and notify users before removing content on their own initiative. It was noted that the duty to identify the original originator is the subject of pending litigation before the Supreme Court due to concerns regarding end-to-end encryption.

The GACs (Rule 3A) were identified as the novel element of the 2021 framework. The central government established three GACs in January 2023, and appeals are filed through the GAC portal. Each GAC consists of an ex officio chairperson from the Government of India and two full-time members described as independent. It was noted that these “independent” members come primarily from government backgrounds, such as retired police, military, and railway officials, and former executives of public banks, along with some from the private sector. Any user who feels aggrieved by the claims officer’s decision, or whose claim remains unresolved within the prescribed time, may file an appeal within 30 days. The GAC “aims” to resolve cases within 30 calendar days, which the speaker characterized as aspirational, because Indian courts consider such deadlines to be guidelines rather than mandatory requirements. The entire procedure takes place online. GAC orders are binding on the intermediary, which must publish a compliance report on its website. GAC decisions may, in turn, be challenged before the High Courts and, ultimately, before the Supreme Court, through a petition for a writ under Article 226. It was noted that no GAC case has reached the Supreme Court, and the mechanism was described as a hybrid between a private claim, a government-appointed body, and judicial review.

4. Case Law and Performance Data

Three High Court decisions were presented. In Atharva v. Union of India (Bombay High Court, Nagpur Bench, June 19, 2026; see this press release), the court upheld the permanent suspension of an Instagram account for violations of the platform’s policies on child sexual exploitation, after the GAC rejected the user’s appeal. The court examined the merits of the case, found that the platform’s zero-tolerance policy was neither arbitrary nor disproportionate, and rejected the claim of a violation of the right to be heard, because the user had been able to file his appeal, submit documents, and provide explanations to the GAC. In Ankur Warikoo v. John Doe (Delhi High Court, May 26, 2025; see this press release), deepfake videos featuring the face, voice, and name of a public figure were used to promote investment schemes. Some of the content was removed following reports to the platform, but not all of it. The GAC deemed the appeal premature because the complaints officer had not issued a specific decision, and referred the complainant back to the platform. After resubmitting the complaint, the content remained online, and the court ordered its removal within 36 hours. In Sitatex v. Union of India (Chhattisgarh High Court, July 22, 2026), an Instagram account had been blocked on April 18, 2026, and the appeal to the GAC was filed on May 28. With the appeal still unresolved after more than a month, the court ordered the GAC to render a decision within 10 days. It is unknown whether this order was complied with, as GAC orders are not made public.

Regarding performance, it was noted that, according to a government report dated January 8, 2025, the GACs had received 2,322 appeals and resolved 2,081, for a resolution rate of approximately 90%. The presenter’s slides show that, as of October 5, 2026, the GAC portal recorded 65,110 appeals received and 7,757 resolved. It was noted that this backlog makes it difficult to meet the 30-day target. Two sources were recommended regarding the practical functioning of the GAC: “The Grievance Appellate Committee: Establishment and Working” (Software Freedom Law Center, December 2025) and a note from the Internet Freedom Foundation, “The Delhi High Court Directs the Grievance Appellate Committee to Dispose of Appeals in 30 Days”, regarding a High Court order requiring the timely resolution of an appeal before a GAC.

5. Proposed Reforms and Key Open Questions

Three proposed reforms to the IT Rules, which are still pending, were summarized. The first, and in the speaker’s view the most significant, would insert a new Rule 3(4) that would make the ministry’s recommendations (advisories), instructions, and similar instruments binding, such that compliance with them would become part of the due diligence required under Section 79, and failure to comply could affect safe harbor status. The second would require that synthetic visual content bear a continuous and clearly visible label throughout its duration. The third would clarify that the current 180-day retention requirements apply without prejudice to longer or additional retention obligations provided for in other laws.

The main open question raised concerns the relationship between Shreya Singhal and the 2021 Rules. While Rule 3(1)(d) codifies the restrictive interpretation of Section 79(3)(b), it was suggested that the broader architecture of the Rules (complaints, proactive monitoring, and due diligence obligations related to the safe harbor) may once again require intermediaries to assess the legality of users’ speech. The question raised was whether the government can indirectly impose, through the due diligence requirement of Section 79(2), what the Court prohibited under Section 79(3)(b). This was presented as a point requiring further examination and not as a conclusion. Concerns were also raised regarding the lack of transparency of the GACs, whose hearings and orders are not public; regarding the independence of a government-appointed body that reviews decisions made by private actors; and regarding the uneven enforcement, which focuses on the largest platforms and relies more on informal negotiation than on formal sanctions.

6. Discussion with Participants

Participants asked whether GAC decisions follow the rulings of the High Courts. It was explained that the GAC is not a court, but that in practice it is expected to follow the doctrine of the High Courts and the Supreme Court. This cannot be verified as long as its orders remain unpublished. It was added that greater involvement by lawyers and civil society could make proceedings before the GACs more complex from a legal standpoint. Regarding transparency, it was noted that intermediaries publish transparency reports containing aggregated data rather than case-by-case information. The compliance reports required following GAC orders could not be located, and some intermediaries do not even appear to have a complaints officer.

Participants also asked what Latin America could learn from the Indian experience. It was noted that the size of the Indian market made it possible to require a local presence, and that the local complaints officer is a valuable mechanism, although the GAC would need to operate on a much larger scale. The speaker acknowledged his limited knowledge of the region and asked how these issues are addressed in Argentina. Regarding applicable law, it was clarified that the GAC applies a combination of Indian law and the platforms’ terms of service, as in the case of Mumbai. So far, no conflict has arisen between the two, but the courts could invalidate a term that contradicts Article 19. In response, participants noted that there is no uniform standard in Latin America, that Brazil leads the way in regulating children’s online activities and intermediary liability, and that the region is engaged in the same debates as other regions regarding due diligence, restricting children’s access to social media, and design-based regulation. It was suggested that a future roundtable on Latin America be organized.

7. Clarifications

Chatham House Rule: This report adheres to the Chatham House Rule at all times. The substantive content, including the data, findings, and positions presented, is drawn primarily from the guest speaker’s presentation and slides. Comments and questions raised during the discussion are reported without individual attribution.

Clarification on the Use of AI: Artificial intelligence tools were used to assist in preparing this summary. The text was reviewed prior to circulation.

Summary written by Josefina Gálvez, Research Assistant, CELE.