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25. That sometime in June, 2016, Modicare found that several of its products were being offered for sale and sold on Amazon‟s platform, without its consent. It is the case of Modicare that the said sale was being facilitated by Amazon through its Fulfilled by Amazon service. Since no seller details were available on Amazon, Modicare claims that to the best of its knowledge, Defendant Nos.2 and 3 were not its Consultants. Modicare then addressed an email to Amazon dated 5th October, 2016, pointing out the rampant sale of Modicare products on Amazon, without the consent of Modicare and that Amazon is not authorised to sell Modicare products on its platform. In response, Amazon simply redirected the representative of Modicare to file specific complaints qua each impugned product through its complaints‟ portal. Thereafter, the representative of Modicare requested to speak to a higher official to address its issue. On 13 th January, 2017, Amazon responded to the email dated 5th October, 2016, and took the stand that it was only an intermediary, entitled to protection under Section 79 of the IT Act. It also claimed that it was not a party to any transaction on the said marketplace and it also does not control any transaction occurring on the said portal. Amazon also averred that it does not play an active role in manufacturing, marketing, pricing and selling or purchasing of the products and that it is a mere facilitator of the transactions between the buyer and the seller. Insofar as the Guidelines are concerned, Amazon stated that these were merely advisory guidelines, and could not be enforced against them. In response to the change in warranties on Amazon, it replied as under:

i) It is further stated that apart from basic services, Amazon also provides additional services which are as under:
o Shipping service and Fulfilled by Amazon service: If the seller availed of these services, the seller would have to register Amazon‟s warehouse as its additional place of business and the products of the seller would then be stored, re-packaged, coded and despatched from the Amazon warehouse. o Amazon also provides services for enabling listings and refers to various service providers and third-party experts to create buyer friendly listings. These service providers can be accessed by the sellers for providing imaging, cataloguing, etc. o Under the Fulfilled by Amazon service, faster delivery of the products is done by Amazon due to the large resources of packing and shipping available at Amazon‟s disposal. o Amazon also provides after sales service in respect of queries pertaining to delivery of products, return/replacement of the products.
Amazon Choice - This is an automated feature which displays highly recommended products by buyers on the Amazon platform. This feature provided by Amazon is an automated system that displays the products on Amazon.

46. On the basis of the aforesaid pleas, it is averred by Amazon that it is only an intermediary as per the IT Act and the Intermediary Guidelines. It claims that as per Section 79 of the IT Act, it is only required to take down content, only once it receives actual knowledge that the content is infringing or is in violation of law. Such actual knowledge has to be in the form of a Court order under Section 79 of the IT Act, as per the dictum of the Supreme Court in Shreya Singhal v. Union of India (2015) 5 SCC 1 (hereinafter, ‗Shreya Singhal'). Amazon claims that it does not have any duty to police the online market place and it does not have to provide any filters to ensure compliance of Trademark laws or the Direct Selling Guidelines by third parties that are uploading content on its platform. The ‗Excluded Products' List' available on the Amazon website is admitted by Amazon. In respect of excluded products, the specific plea of Amazon is that that is a measure taken by it in good faith to further its business as a safe marketplace. The said list does not in any manner, take away the "safe harbour" protection from Amazon, and it is still entitled to the protection afforded to intermediaries under the IT Act. The information, so provided in the Excluded Products' list, is only for the guidance of the sellers.

 That Oriflame‟s reliance on unfavourable reviews on the Amazon platform to establish the fact that Amazon had „actual knowledge‟ of the nature of the goods being sold, is misplaced. The review feature is available on Amazon to enable the consumer to make an informed choice. However, the responsibility of listing the said products on Amazon‟s platform is on the seller, and the reviews no way can impute liability on Amazon for illegally selling Oriflame products. There are millions of product listings on Amazon, and as many reviews, and Amazon cannot be expected to keep track of what each consumer is writing about a particular product.  Further, the Oriflame products on the Amazon platform having poor reviews, also have similar reviews on Oriflame‟s own website.  In respect of allegations of listing of Amazon‟s fulfilment centres as an ―additional place of business‖ by the seller, Amazon contends that the same is a legal requirement under the Central Goods and Services Tax Act, 2017.