Authors: Tanya Chaudhry & Bharath Gangadharan

The Invisible Gatekeepers: Reimagining 'Intermediary' Liability in the Digital Age

In the early days of the internet, "intermediaries" were neutral conduits, seen as the digital equivalent of a post office or a telephone company, who transfer data from one person to another. However, as the digital economy is maturing, "intermediaries" have evolved from passive pipes into active gatekeepers of commerce and culture. Today, the legal battlefield over "Intermediary Liability" determines who pays the price when things go wrong online: is it the user who infringes, or the platform that provided the stage for such infringement.

This article explores the shifting stands of intermediary liability by comparing recent landmark rulings: the U.S. Supreme Court’s 2026 decision in Cox Communications v. Sony Music[1], and the Indian Court’s 2023 and 2024 stance in Google LLC v. DRS Logistics[2] and Google LLC v. MakeMyTrip [3].

1. Who are the Intermediaries?

Before diving into the law, we must identify an "intermediary" as an entity that facilitates the use of the internet but does not typically create the content being transmitted. These inter alia include:

(i) Internet Service Providers ("ISPs") and Telecom Service Providers ("TSPs"): The entities providing a ramp to the web, such as, Airtel, Jio in India; Cox Communications in the United States.

(ii) Domain Name Registrars ("DNRs") and Web Hosts: The entities that lease out digital real estate to the world, such GoDaddy, Hostinger, Wix, Squarespace.

(iii) Search Engines: The navigators of the web, such as Google, Microsoft Bing, Yahoo.

(iv) E-commerce and Social Media Platforms: The digital marketplaces and town squares, such as Amazon, MakeMyTrip, Instagram, YouTube.

2. The Safe Harbour: A Shield, Not a Sword

Most legal systems, including United States and India follow the "Safe Harbour" principle. In India, this is codified under Section 79 of the Information Technology (IT) Act, 2000. It states that an intermediary shall not be liable for any third-party information or data hosted on its platform. An intermediary shall be protected by its safe harbour, provided:

(i) Its role is limited to providing access to a communication system.

(ii) It does not initiate the transmission, select the receiver, or modify the information.

(iii) It observes "due diligence" and follows government guidelines, such as appointing a Grievance Officer.

If an intermediary receives actual 'knowledge' of an infringement (often by a court order) and fails to act upon it, this safe harbour shield shatters. In February 2026, India has notified new regulations[4], ensuring that intermediaries label Synthetically Generated Information (SGI) and carry permanent metadata or a unique identifier to trace its origin. Significant Social Media Intermediaries (SSMIs), that is, social media platforms having more than 5 million users (such as Instagram), must mandate a user declaration regarding AI generated content and verify them. Any content which is deemed to be infringing by the government or through a Court order, must be removed within 2 to 3 hours. Non-compliance, including failure to label SGI, missing strict takedown timeless, or allowing prohibited content, can result in the loss of the safe harbour protection.

Illustration: Imagine a mall owner having a tenant in a particular shop selling infringing Louis Vuitton bags. If the mall owner is merely providing the space to the tenant/infringer, he will be protected by the safe harbour principle. However, if he helps design or promote the infringing products as genuine, he loses that neutral status.

Digital Illustration: If an individual sells infringing Louis Vuitton bags on Instagram by using a morphed photo, the intermediaries, such as Instagram and Airtel are protected by the safe harbour principle if their role was limited to providing a platform for communication and they agree to take down the infringing content, upon gaining knowledge of such infringement.

Similarly, JioHotstar had exclusive rights to telecast all cricket matches, such as the New Zealand Tour of India 2026, ICC Men's Cricket World Cup, 2026, organised by the BCCI (Board of Control for Cricket in India). Anticipating illegal dissemination of the most popular sporting events, the Courts have been granting[5] a 'Dynamic+' injunctions to JioHotstar by directing the intermediaries to take down the infringing content within 72 hours of receiving the Court's notice.

3. The Indian Perspective: The "Keyword" Conundrum

India’s jurisprudence has recently focused on the liability of intermediaries using a keyword to direct the user to a different page.

In the case of Google LLC v. DRS Logistics[6], DRS Logistics (owners of "Agarwal Packers & Movers") alleged that Google Ads Programme allowed its competitors to bid on their registered trademark as a keyword for their sponsored links. When users searched for the keyword "Agarwal Packers", competitors' infringing sponsored links appeared at the top, diverting traffic through deception.

The Courts held that Google is an 'active' participant because its algorithm suggests keywords to competitors and it profits from the bidding process. Consequently, Google could not claim an automatic safe harbour as it was 'using' the trademark that led to confusion and diverted traffic deceptively.

However, the Courts have balanced this in Google LLC v. MMTV (MakeMyTrip)[7]. MMT sought an injunction against Booking.com for bidding on the keyword "MakeMyTrip". The Courts clarified that bidding on a competitor’s name is per se not infringement. If the resulting ad is clear and doesn't deceive the user into thinking Booking.com is MakeMyTrip, thereby causing no confusion, then there is no liability and it is considered fair competition.

Illustration: If you search for Nike and an ad for Adidas appears clearly labelled as 'Sponsored', you aren't confused, you're being offered an alternative. That is fair competition. But if the ad says 'Nike Official Site' and leads to a website selling infringing products, the intermediary's role becomes suspicious.

4. The U.S. Jurisprudence: The $1 Billion Reversal

While India focuses on 'active' participation of the intermediaries, the U.S. Supreme Court recently drew a hard line on 'intent' and 'knowledge' in Cox Communications, Inc. v. Sony Music Entertainment (2026).

In this case, music labels sued Cox (an ISP), alleging it was liable for its users' massive copyright infringement (piracy). The lower court had held Cox liable with a $1 billion compensation as Cox had prior knowledge of the piracy and didn't terminate the repeated infringers' accounts timely.

On 25.03.2026, SCOTUS set aside the verdict of the lower court. Justice Clarence Thomas wrote that ISPs/ intermediaries cannot be liable for infringement by its user merely because it has the 'knowledge' of such infringement. The Court narrowed the liability of ISPs/ intermediaries to establish 'intent' through:

(i) Inducement: Actively encouraging users to infringe (such as, "Download free pirated movies here!").

(ii) Tailored Service: Providing a service specifically designed for infringement with no significant lawful use.

The Court held that since Cox is an ISP and provided general internet access, a service used for everything from homework to health care, it could not be held liable just for failing to act timely upon having the 'knowledge' of infringement. Having such 'knowledge' is not enough to prove the intent required for a billion-dollar penalty. The Court warned that imposing massive liability on ISPs for the sins of their users would force providers to disconnect entire households, businesses, and even hospitals based on mere allegations. Such a model would chill the very infrastructure of the modern world.

5. Conclusion

The Indian courts are increasingly holding intermediaries like Google to a higher standard of 'due diligence' when they profit from the way content is organized by being the 'active' intermediary. Conversely, the U.S. Supreme Court has cautioned against expanding the liability of intermediaries unless there is a specific 'intent' for such infringement.

Both the judgments have placed a similar analysis focussing on the nature of the intermediaries' role, ruling that an intermediary is not automatically liable merely for providing a platform that could be used in an infringing manner. Instead, it looked at factors such as the level of control and intent exercised by the intermediary in using the trademark.

The evolution of digital platforms from passive pipes to active gatekeepers had fundamentally altered the landscape of intermediary liability. While the core principle of safe harbour remains a global anchor, its application now hinges on the degree of control and intent exercised by an intermediary.

As we move forward, to hold the these invisible gatekeepers liable, a proprietor must prove that the intermediary did more than just leave the gate open, they actively pointed the way to the crime or provided the map to the infringement. As the digital economy matures, the law continues to ensure that while the stage is provided by the intermediary, the price of the performance is only shared when the intermediary joins the act.

[1] Delivered on 25.03.2026 by the Supreme Court of the United States| Cox Communications, Inc. Et Al v. Sony Music Entertainment Et Al

[2] (2023) SCC OnLine Del 4809

[3] (2023) SCC OnLine Del 7965| On 07.03.2024, the Supreme Court of India dismissed MakeMyTrip's appeal against the Delhi High Court's order in SLP (C) No. 1575-1576 of 2024. Thus, the Division Bench order passed by the Delhi High Court has attained finality.

[4] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, notified on 10.02.2026, and effective from 20.02.2026

[5] Jiostar India Pvt. Ltd. v. Cricfy TV & Ors., 2025 SCC OnLine Del 8430| Jiostar India Pvt. Ltd. v. GHD Sports & Ors., 2026 SCC OnLine Del 429

[6] (2023) SCC OnLine Del 4809

[7] (2023) SCC OnLine Del 7965| The Supreme Court of India, on 07.03.2024, dismissed MakeMyTrip's appeal against the Delhi High Court's order in SLP (C) No. 1575-1576 of 2024. Thus, the Division Bench order passed by the Delhi High Court has attained finality.