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The conditional legal immunity for hosting unlawful content (safe harbour) provided by Section 79 of the Information Technology Act, 2000 (IT Act) is central to the regulation of online platforms in India for two reasons. First, absent this immunity, platforms in India risk being secondarily liable for a wide range of civil and criminal offences. Second, the Indian Government has recognised that legal immunity for user-generated content is key to platform operations and has sought to regulate platform behaviour by prescribing several pre-conditions to safe harbour. This chapter examines the different obligations set out in the Intermediary Guidelines and evaluates the efforts of the Indian government to regulate platform behaviour in India through the pre-conditions for safe harbour. This chapter finds that the obligations set out in the Intermediary Guidelines are enforced in a patchwork and inconsistent manner through courts. However, the Indian Government retains powerful controls over content and platform behaviour by virtue of its power to block content under Section 69A of the IT Act and the ability to impose personal liability on platform employees within India.
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