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In the absence of any judgment from our Indian Courts, the judgements of foreign Courts are having highest persuasive value though not binding precedent, as those judgments are not the law declared by the Apex Court under Article 142 of Constitution of India. Therefore, the Trial Court and the Appellate Court would have accepted the highest persuasive value of the judgments of foreign Courts, but ignored totally. It is also drawn attention of this Court to Section 79 (3) of Information Technology Act, 2000, which is amended by Act.10/2009 with effect from 27.10.2009 to claim immunity from liability, since 2nd defendant is only an intermediary having no control over the contents of the postings and the definition of the term intermediary under The Information Technology Act, 2000, and placed reliance on the judgments in Vodafone International Holdings B.V. v. Union of India and another , ISI SRA v Google Italy Srl, Google Infrastructure Srl, Yahoo! Italia Srl. - Court of Milan translated version, A v Google New Zealand Ltd ., Duffy v Google Inc. & anr , Crop Care Federation of India v. Rajasthan Patrika (Pvt.) Ltd. And Ors. and R.Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and another v. J.Jayalalitha and another , on the strength of those judgments and principles laid down in those judgments, learned counsel for the appellant (D-3) would contend that 2nd defendant being an intermediary has no liability, since it has no control over the postings in the blogsite and the 2nd defendant proved exercise of due diligence.

The appellant/defendant No.2 would come within the definition of intermediary being a web-hosting service provider though the overall control was only with the defendant No.3.

Intermediary cannot be equated with an agent under the Indian Contract Act since there is specific definition in the Information Technology Act for the word intermediary. Intermediaries are third party organizations that offer intermediation services between the parties trading amongst themselves. Such organizations act as ducts for services offered by a supplier to the relevant consumer. Value addition to the service in question is a key aspect of the trading platform offered by such intermediaries, which is highly improbable if the trading is done directly. Provision of a trading platform for any kind of electronic commerce is the key link of the existence of an intermediary. Even to such intermediary service, certain safeguards have to be provided by the main service provider.