On November 2, 2018, the Delhi High Court laid down detailed conditions for an e-commerce intermediary needed to meet in order to claim safe harbour protection under Section 79 of the Information Technology Act, 2000. Through this judgement, the Delhi High Court raised the threshold that e-commerce intermediaries needed to meet in order to claim safe harbour protection under Section 79 of the Information Technology Act, 2000. The Court enlisted 26 possible services that may be relied upon to determine whether an intermediary was a mere conduit or an active intermediary.
The case originated after the Petitioner Christian Louboutin, a luxury goods brand, alleged that the defendant company Darveys.com was indulging in unauthorised sales by selling its products thus violating the Trademarks Act, 1999. The website, among other things, charged a membership fee for users to join the platform, hosted an article about Christian Louboutin products, used meta-tags, and showed the brands’ logo/product photographs.
The Court held that Darvey.com actively participated in the trading process which is evident by the fact that it did not disclose details of the foreign sellers, it guaranteed the products’ authenticity and it had a membership fee. Thus, it was not an entitled to safe harbour protection under Section 79 of the Information Technology Act, 1999.