Authored By: Undine Kupla
University of Salford
The rise of digital platforms has fundamentally transformed public discourse, enabling unprecedented levels of communication, participation, and information exchange. Social media companies, search engines, and content-sharing platforms now function as the primary gateways through which billions of individuals access news, express opinions, and engage in political debate. This transformation has generated a difficult legal question: to what extent should online intermediaries be held liable for content created by their users? The issue lies at the intersection of two competing concerns. On one hand, excessive liability may incentivize platforms to remove lawful content, thereby chilling freedom of expression.[1] On the other hand, broad immunity may allow harmful content such as hate speech, misinformation, defamation, and incitement to proliferate without adequate accountability.[2] The challenge for lawmakers is therefore not whether intermediaries should bear responsibility, but rather how such responsibility should be structured. This article argues that a risk-based intermediary liability regime offers a more effective balance between platform accountability and free speech than either absolute immunity or extensive liability.
Historically, intermediary liability frameworks emerged to protect innovation and encourage the growth of the internet. In the United States, Section 230 of the Communications Decency Act grants online platforms broad immunity from liability for third-party content.[3] This provision has often been described as the legal foundation of the modern internet because it enables platforms to host vast quantities of user-generated content without facing constant litigation.[4] Similarly, Article 14 of the European Union’s E-Commerce Directive established conditional safe-harbour protections for hosting providers.[5] These frameworks were developed when online platforms functioned primarily as passive intermediaries rather than sophisticated content curators. However, contemporary platforms no longer merely host information. Through algorithmic recommendation systems, targeted advertising mechanisms, and content amplification tools, they actively shape what users see and engage with.[6] The continued application of broad immunity to entities exercising significant control over digital information flows raises legitimate concerns regarding democratic accountability and the protection of individual rights.
Despite these concerns, imposing extensive liability upon intermediaries presents serious constitutional and practical risks. Freedom of expression is protected under Article 19(1)(a) of the Constitution of India and constitutes a cornerstone of democratic governance.[7] Similar protections exist under international human rights law, including Article 19 of the International Covenant on Civil and Political Rights.[8] If platforms face severe legal consequences for user-generated content, they may respond by removing controversial or politically sensitive speech pre-emptively. This phenomenon, often referred to as “collateral censorship,” transfers decisions regarding permissible speech from courts to private corporations motivated primarily by risk avoidance.[9] The result may be the suppression of lawful expression, minority viewpoints, and legitimate political criticism. Critics of intermediary immunity often underestimate this danger. While harmful content undoubtedly causes social harm, overregulation can produce equally troubling consequences by enabling widespread private censorship without judicial oversight. The protection of free speech therefore, requires careful consideration when designing liability frameworks.
Indian jurisprudence illustrates the tension between platform accountability and constitutional freedom. In Shreya Singhal v. Union of India, the Supreme Court struck down Section 66A of the Information Technology Act while also clarifying the scope of intermediary liability under Section 79.[10] The Court held that intermediaries should generally be required to remove content only pursuant to a court order or government notification, thereby reducing the risk of arbitrary censorship.[11] This decision reflected a recognition that unrestricted takedown obligations could have a chilling effect on online speech. However, subsequent regulatory developments, particularly the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, have expanded due diligence obligations for platforms.[12] While these rules seek to address concerns regarding harmful content, they also raise questions about procedural safeguards, transparency, and the concentration of regulatory power. The Indian experience demonstrates that both unrestricted immunity and expansive regulatory intervention present challenges for democratic governance and constitutional rights.
A more sustainable approach lies in the adoption of a risk-based liability regime. Rather than treating all intermediaries identically, legal obligations should vary according to the nature, size, influence, and functionality of the platform involved. This model has gained prominence within the European Union through the Digital Services Act, which imposes enhanced responsibilities upon Very Large Online Platforms while maintaining protections for smaller intermediaries.[13] The rationale underlying this approach is compelling. A global social media platform with hundreds of millions of users possesses significantly greater capacity to moderate content and prevent systemic harms than a small discussion forum or startup service. Imposing identical obligations upon both actors disregards practical realities and may hinder innovation. A risk-based framework recognises that the potential societal impact of a platform should inform the extent of its legal responsibilities. Such an approach promotes proportionality, a principle increasingly recognised within constitutional and regulatory jurisprudence.[14]
Nevertheless, even risk-based models are not free from criticism. Determining which platforms qualify as high-risk actors involves complex regulatory judgments that may become politically contested. Furthermore, excessive reliance upon algorithmic content moderation may lead to opaque decision-making processes that undermine due process and transparency.[15] Automated systems frequently struggle to distinguish between harmful speech and legitimate political commentary, satire, journalism, or academic discussion. Consequently, accountability mechanisms must extend beyond content removal obligations. Platforms should be required to provide transparency reports, independent audits, meaningful appeals processes, and clear explanations for moderation decisions.[16] Such measures address systemic risks without encouraging indiscriminate censorship. The objective should not be to transform platforms into private regulators of speech but rather to ensure that they exercise their considerable influence in a manner consistent with democratic values and human rights principles. Effective regulation must therefore focus not only on outcomes but also on procedural fairness and institutional accountability.
In conclusion, the debate surrounding intermediary liability reflects a broader struggle to reconcile freedom of expression with accountability in the digital age. Traditional safe-harbour protections were developed for an internet ecosystem vastly different from the one that exists today. At the same time, proposals for extensive platform liability risk encouraging over-censorship and undermining constitutional freedoms. Neither absolute immunity nor expansive liability offers a satisfactory solution. A risk-based intermediary liability regime provides a more balanced alternative by tailoring obligations according to a platform’s scale, influence, and capacity to mitigate harm. Such a framework recognises the evolving role of intermediaries while preserving the fundamental importance of free expression. Ultimately, the goal of regulation should not be to eliminate harmful content at any cost, nor to shield powerful platforms from responsibility, but to create a digital environment where accountability and freedom reinforce rather than undermine one another. The future of online governance depends upon achieving this delicate but essential balance.[17]
Table of cases
Shreya Singhal v Union of India (2015) 5 SCC 1
Table of Legislation
Communications Decency Act 1996, 47 USC § 230
Constitution of India 1950
Information Technology Act 2000
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, Especially Electronic Commerce, in the Internal Market (E-Commerce Directive) [2000] OJ L178/1
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act)
International Instruments
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
United Nations Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression (2011) UN Doc CCPR/C/GC/34
Bibliography
Books
Barak A, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012)
Gillespie T, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media (Yale University Press 2018)
Kosseff J, The Twenty-Six Words That Created the Internet (Cornell University Press 2019)
Pasquale F, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press 2015)
Journal Articles
Balkin JM, ‘Old-School/New-School Speech Regulation’ (2014) 127(8) Harvard Law Review 2296
Reports
Kaye D, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (United Nations Human Rights Council, 2018) UN Doc A/HRC/38/35
[1] Article 19(1)(a), Constitution of India, 1950.
[2] United Nations Human Rights Committee, General Comment No 34 (2011).
[3] Communications Decency Act 1996, 47 USC § 230.
[4] Jeff Kosseff, The Twenty-Six Words That Created the Internet (Cornell University Press 2019).
[5] Directive 2000/31/EC of the European Parliament and of the Council (E-Commerce Directive), art 14.
[6] Tarleton Gillespie, Custodians of the Internet (Yale University Press 2018).
[7] Constitution of India, art 19(1)(a).
[8] International Covenant on Civil and Political Rights 1966, art 19.
[9] Jack Balkin, ‘Old-School/New-School Speech Regulation’ (2014) 127 Harvard Law Review 2296.
[10] Shreya Singhal v Union of India (2015) 5 SCC 1.
[11] Ibid.
[12] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
[13] Regulation (EU) 2022/2065 (Digital Services Act).
[14] Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012).
[15] Frank Pasquale, The Black Box Society (Harvard University Press 2015).
[16] David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (United Nations Human Rights Council, 2018) UN Doc A/HRC/38/35.
[17] Regulation (EU) 2022/2065 (Digital Services Act); Shreya Singhal v Union of India (2015) 5 SCC 1.
