4 April 2019Jurisdiction reportsNV Saisunder and Shyamolima Sengupta

India jurisdiction report: Liability of e-commerce service providers

The statutory provision that lays down the framework to decide the liability of e-commerce platforms is contained in section 79 of the Information Technology Act, 2000. Section 79 is a provision that is applicable for “intermediaries” engaged in transactions by means of electronic data interchange and other means of electronic communication and includes by reference “online-marketplaces”. In this article, “intermediary” and “e-commerce platform” are used interchangeably.

Section 79 lays down the safe harbour principles exempting an intermediary in certain cases. The intermediary is not liable in two situations: (a) if its function is limited to providing access to a communication system over which the information made available by a third party is transmitted or hosted; or (b) if it does not initiate or select the receiver of the information, and does not modify the information.

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