Vol.15 Issue 2 (2019)

The Changing Landscape of Intermediary Liability for
E-Commerce Platforms: Emergence of a New Regime

Vasundhara Majithia

As India becomes the fastest growing market for e-commerce in the world, it is also grappling with the issue of proliferation of counterfeits on e-commerce portals. India’s judicial system has awakened to this predicament and in a spate of judgements, has sought to evolve a mechanism balancing the rights of e-commerce platforms as intermediaries via-a-vis the rights of brand owners and public interest at large. This article explores the evolution of intermediary liability in India by examining its legal framework, as well as the jurisprudence developed by Indian courts in this regard. It traces the shift in this jurisprudence from the classical ‘free speech’ understanding to the ‘notice and takedown’ regime to a determination of whether e-commerce platforms qualified as ‘intermediaries’ in the first place. It concludes that while new jurisprudence evolved by Indian courts substantially clarifies the framework of intermediary liability vis-à-vis e-commerce platforms, several challenges lie ahead for both brand owners and e-commerce platforms in addressing this issue. It then seeks to understand these challenges in light of the policies proposed to regulate the e-commerce space, and finally recommends a self-regulatory mechanism to combat the online proliferation of counterfeits

Author

Associate, Fidus Law Chambers.