"Akirtinchapi bhutani kathaishyanti te-a-vyayam, Sambha-vitasya Chakirtir maranadatirichyate. (2.34) (Bhagavad Gita)
Regulations have been put in place governing certain aspects of the relationship between the Intemediaries and the end users. The Information Technology Act, 2000 and Information Technology (Intermediaries Guidelines) Rules, 2011 are steps in this direction. The 2011 Rules recognise defamation, libel, invasion of privacy etc., as the non permissible activity. Statutory duty is cast on the Intermediaries to frame rules and regulations of conduct/user agreements, before they allow their users to post, publish etc.
However, the 2009 Amendment replaced the old section 79 with the new section 79 which gave exemption from liability of intermediary in certain cases. The exemption given under sub-section (1) is from liability under any law for any third party information, data, or communication link made available or hosted by him. The exemption so given is made subject to sub-section (2) and (3) thereof. Sub-section (2) prescribes the conditions for having the benefit of exemption. Vide Clause (c) of sub-section (2) the intermediary is required to observe due diligence while discharging his duties under this Act. While, sub-section (3) prescribes when the exemption under section (1) shall not apply.
The argument against Intermediaries exercising their own judgment upon receiving actual knowledge of unlawful acts could result in curtailing free speech, was the basis for reading down the provisions of Section 79(3)(b) and Rule 3(4) in Shreya Singhal's case.
However, is it not equally true about the Intermediaries being allowed to sit in judgment on the sense of loss of reputation of individuals, who report to them about defamatory publications being posted and shared on their platforms?
In such cases free speech necessarily has to give way to Right to reputation. Delay in taking down defamatory content causes not only irreparable but also irreversible damage to reputation which cannot be compensated in any manner. The Intermediaries will be well within their rights to remove such defamatory content. They would not be sitting in judgment over the offending posts, but will be acting under their user agreements, which do not permit defamatory content.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
 Subramanian Swamy vs. Union of India; 2016 (7) SCC 221; Para 25-30 at page 273-274.
 'Smt Kiran Bedi vs. Committee of Inquiry'; (1989) 1 SCC 494 at page 514, para 22.
 2019 SCC Online SC 1587
 2015 5 SCC 1
 2016 (7) SCC 221 at page 351, para 210.
 2005 5 SCC 733, @ 746 para 11