Amazon, Flikarts, Indiamart etc are the new age e-marketing platforms which
provide lots of easy options for the sellers to sell their products.
These e-marketing platforms are also getting popular because it is not necessary
for the seller to invest money on renting or purchasing a shop. If their
products are good, they are bound in succeed.
But what happens in case on these e marketing platforms, duplicate products are
being offered and sold by the sellers. Whether these e-marketing platforms can
claim benefit of being an Intermediary?
Whether these e-marketing web sites, the intermediaries, are criminally liable
for such illegal transactions being carried out by different sellers using these
In Judgement dated 17.08.2022 passed by Hon'ble High Court of Delhi WP(CRL) 1376
of 2020 titled as Flipkart Internet Pvt. Ltd. Vs State of NCT of Delhi,
this issue was addressed by the Hon'ble High Court of Delhi.
The Respondent No.2 was the complainant. The subject matter Complaint was filed
by the Respondent No.2 on the basis of proprietary rights in the Trademark DC
DERMACOL in respect of skin makeup.
The greivance of the Respondent No.2 was that fake products under the trademarks
DC DERMACOL was being sold by sellers on the emarketing sites Flipkart and
Accordingly complaint was filed by the Respondent No.2 and accordingly FIR
No.103/2020 dated 17th August, 2020 was registered at the Economic Offences
Wing, New Delhi, under Section 63 of the Copyright Act, 1957 and Sections
103/104 of the Trade Marks Act, 1999.
It is against registration of FIR No.103 of 2020, the present criminal writ
petition was filed by the Petitioner seeking quashing of the afire mentioned
The main contention of the Petitioner was that the same was merely an
Intermediary and hence was entitled to protection in view of judgment of the
Supreme Court in Shreya Singhal Vs Union of India, 2015 (5) SCC 1.
The Petitioner submitted that the same being merely intermediary, its obligation
is only to observe due diligence and follow the guidelines that may be
prescribed by the Government in this behalf.
Section 79 if the Information Technology Act provides for certain exemption to
the Intermediaries. Section 79(2) (c) of the Intermediary Act provides the
following condition to be observed by a Intermediary.
(c) the intermediary observes due diligence while discharging his duties under
this Act and also observes such other guidelines as the Central Government may
prescribe in this behalf.
Intermediary guidelines further cast obligation on the Intermediary to intimate
its user that their usages may be terminated in case of non compliance of
Intermediary Guidelines. Relevant portion of Intermediary Guidelines are given
5) The Intermediary shall inform its users that in case of non-compliance with
intermediary computer resource, the Intermediary has the right to immediately
terminate the access or usage lights of the users to the computer resource of
Intermediary and remove noncompliant information.
It was case of the Petitioner that the same has complied with relevant
provisions of Information Technology Act as well as the Intermediary Guidelines
The Hon'ble High Court of Delhi has observed that penal consequences of non
compliances of Intermediary Guidelines have not been provided. More over if the
Intermediary establishes that the same has exercised the due diligence as
warranted, the same can not be held liable.
The Hon'ble Court observed that for fixing criminal liability is far higher than
that under civil law, one requiring proof „beyond reasonable doubt and not just
a balance of probabilities.
For instance, to establish criminal liability for negligence, the standard of
proof is set much higher than for „civil liability‟ under the law of Torts for
negligence. There is no reason why that higher standard should not be available
to courts to determine whether an intermediary would be liable under the
criminal law for action or inaction.
It would also stand to reason that when the intermediaries have been granted
Safe harbour qua civil liability, and when a higher standard of culpability is
required for a criminal prosecution, such "safe harbour"
available even in respect of criminal prosecution.
Thus, unless an active role is disclosed in the commission of the offences
complained of, the intermediary, such as the present petitioner, would be
entitled to claim protection under Section 79 of the I.T. Act.
In the present case the Hon'ble High Court of Delhi was pleased to quash the FIR
on the ground that in the instant case, the case for fixing criminal liability
against the Petitioner was not made out as the Petitioner has done the
compliances of Information Technology as well as the Intermediary Guidelines.
The basic idea behind passing this Judgement was that in order to affix criminal
liability, the standard of proof required,is vary high.
This standard of proof has not been made out by the Respondent No.2 in the
present case. Accordingly the subject matter FIR was held not to be maintainable
in the eyes of law.
Case Law Discussed:
Flipkart Internet Pvt. Ltd. Vs State of NCT of Delhi
Case No. WP(CRL) 1376 of 2020
Delhi High Court
Asha Menon, H.J.
Written By: Ajay Amitabh Suman,
IPR Advocate, Hon'ble High Court of Delhi