No. 13114/2019-e-Commerce
Government of India
Ministry of Commerce & Industry
Department for Promotion of Industry & Internal Trade
(e-Commerce Section)
Udyog Bhawan, New Delhi-110011
Dated: 22nd February, 2021
To,
Mr. Kunal Bahl
Chairman, CII National Committee on eCommerce
Confederation of Indian Industry
249-F, Sector 18. Udyog Vihar, Phase IV
Gurugram – 122 015 (Haryana), India
Subject – Intermediary Safe Liability Limitation – reg.
Sir,
I am directed to refer to your email dated 06 10 2020 on the above mentioned Subject and to state following conditions with regards to exemptions from liability to Intermediaries under IT Act
i. Section 79 of the IT Act provides for intermediaries to get exemption from liability provided they follow certain due diligence and also if, they are not aware of the information being transmitted through their platform Online market place being Intermediaries also enjoy the same immunity. They are also required to follow other legislation like the Consumer Protection Rules etc.
ii. However, online market place intermediaries which assure about the types of products being sold on their platform (for instance Amazon assured products, Flipkart assured products etc.) may not enjoy the exemption from liabilities under section 79 Of IT Act as by providing assurance about the product they already know about product Thus in such cases. they are more like a ‘publisher than passive “Intermediary” Accordingly for such assured products online marketplace are more akin to a “seller than “intermediaries”
iii. Moreover, the sale of products on online platform is also covered by terms of services and any other assurances/ guarantee provided by platform to the buyers Thus they are responsible for such terms-of-service and assurances/guarantees
2. With regards to educating and informing the Law Enforcement Agencies (LEA) about the intent of exemption from liability, it is stated that Ministry of Home Affairs is the nodal Ministry for dealing with law Enforcement Agencies. In this regard, it is requested to take up the matter with MHA for appropriate advisory/clarification for bunging clarity in law with the Law Enforcement Agencies
(Nayonika Dutta)
Deputy Director
Telefax 2306 2327
Email id – [email protected]
