Who Owns Visibility in the AI Era? The Significance of IndiaMART v. OpenAI Judgment
Introduction
The rise of artificial intelligence has transformed how individuals search for information, buy and compare products online. Unlike the traditional search engines like Google that presents the user with a set of links and directs users to websites, AI-powered systems provide synthesised answers and recommendations which means we don't have to click through every link to find what we are looking for, we simply have to ask an LLM and it provides recommendations based on our needs expressed through prompt. This development has raised important legal and commercial questions, one such question was addressed in the judgement of Indiamart Inter Mesh Limited v. Open AI Inc. and Others (2026 SCC OnLine Cal 5738) decided by HMJ Ravi Krishan Kapur of Calcutta High court on 20 May 2026. If an AI platform becomes a primary source of information, can a business demand inclusion in its responses? Is it a legal injury if the LLM omits a business? More fundamentally, how do the existing laws classify technologies that not only process information, but also generate new content? These were the questions that came before Calcutta High Court. Although the dispute arose from Indiamart’s complaint regarding visibility on ChatGPT search, the judgement explored beyond the disagreement between two private entities.
The Dispute
IndiaMart is one of India’s largest electronic business-to-business marketplaces since 1996, serving millions of buyers and sellers across India. They also have registered trademarks and their entire business depends on visibility on the internet considering the digitalisation of the market. Open AI launched ChatGPT search in October 2024, which is a feature that supplements AI responses with links to relevant web sources. Indiamart alleged that ChatGPT was not displaying links to their online platform in the same way that it displayed links to other competing services or individual sellers. A major grievance raised by Indiamart was that ChatGPT allegedly bypassed IndiaMart market listings by directing users to sellers’ individual websites while continuing to provide platform level links for other competing platforms. Hence, they contended that this practice diverted users away from their platform and negatively affected their business interests. The company argued that such exclusion amounted to discriminatory treatment and resulted in economic harm, diluted its trademarks and amounted to disparagement. They alleged that it violated their rights under article 14, 19, 21 under the constitution and rights under IT Act and IT Rules also. When IndiaMart sought an explanation from OpenAI, the company stated that its decision was influenced by the inclusion of IndiaMart in the United States Trade Representative (USTR) Review of Notorious Markets for Counterfeiting and Piracy 2024, a U.S. government report that identifies online and physical marketplaces alleged to facilitate intellectual property infringements. IndiaMart challenged this justification, arguing that the USTR report has no statutory or binding force in India. It further alleged selective discrimination, pointing out that several other platforms featured on the same USTR list including DHGate, Pinduoduo, Shopee, and Taobao continued to remain accessible through ChatGPT-generated responses. Consequently, IndiaMart approached the Calcutta High Court seeking interim relief directing ChatGPT to display and provide access to IndiaMart links in its responses.
ARGUMENTS BEFORE THE COURT
IndiaMart's contentions: They argued that ChatGPT, because its search feature, performs the role of an "intermediary" within the meaning of Section 2(1)(w) of the IT Act and is therefore required to comply with the obligations imposed under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Relying on Rule 3(1)(n), IndiaMart argued that an intermediary cannot engage in discriminatory treatment of platforms or selectively restrict access to information. IndiaMart further maintained that users have a right to access information relating to its platform and that the omission of IndiaMart links from ChatGPT's responses violated this interest. They alleged violation of Articles 14, 19, and 21 of the Constitution, along with the broader principle of a user's "right to know", to argue that OpenAI owed an obligation to display IndiaMart listings in response to relevant queries. In addition, IndiaMart alleged that the exclusion of its links caused commercial harm, diluted its trademarks, amounted to disparagement, and constituted an unfair trade practice that adversely affected its business and reputation.
OpenAI's contentions: OpenAI asserted that IndiaMart had no legally enforceable ‘Right to visibility’ on ChatGPT. They argued that neither contract, statute, nor constitutional law imposed any obligation on OpenAI to display, prioritise, or recommend IndiaMart links in response to user queries. In the absence of any recognised legal right, there could be no actionable injury and therefore no valid cause of action. OpenAI also challenged the classification of ChatGPT as an "intermediary" under the Information Technology Act, 2000. According to OpenAI, ChatGPT does not merely host, transmit, or facilitate access to third-party content but also generates responses through its large language model (LLM) and therefore functions more closely as an "originator" than an intermediary. Consequently, the obligations applicable to intermediaries under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including those relied upon by IndiaMart, were inapplicable. With respect to the USTR Notorious Markets List, OpenAI submitted that its reliance on the report formed part of its internal risk-management and business policies. Such decisions, it argued, were matters of private commercial judgment and not ordinarily subject to judicial review. OpenAI further pointed out that IndiaMart had also previously blocked ChatGPT from accessing and crawling its website that weakened the company's demand for greater visibility within ChatGPT-generated responses.
Court’s decision: The court rejected Indiamart's claim that they were entitled to be displayed in ChatGPT searches. The court emphasised the autonomy of private businesses, the court held that the right to carry on trade and business is "inviolable" and that no law can compel one private entity to operate their platform for the benefit of another, which is based on foundational economic philosophy of laissez faire. Unless there is a contractual, statutory or constitutional obligation, a platform has no duty to the other platform to promote or advance their economic interest. Applying this principle, the court found no such duty or “vested legal right” that entitled IndiaMart’s visibility on ChatGPT. The court reasoned that even if users possess the ‘right to know’, Indiamart could not convert that interest into an enforceable claim under article 19(1)(g) or other legal provision. The court looked at the dispute as one arising from commercial disadvantage rather than violation of any legally protected right. Although the reduced visibility may have had economic consequences, economic harm does not by itself create a cause of action.
The court also took into consideration whether ChatGPT should be classified as an intermediary under Section 2(1)(w) of the Information Technology Act, 2000 or as an originator under Section 2(1)(za). This was an important distinction, because the intermediaries can claim safe harbour protection under section 79 of the IT act, but the originators cannot. The court expressed a preliminary view that ChatGPT is generative capabilities, place it closer to an originator than an intermediary because, unlike conventional search engines, which identify and rank existing information, Generative AI systems, analyse the data and produce new output based on algorithms, which is in response to the user’s prompt. The Court also referenced the NITI Aayog National Strategy for Artificial Intelligence (pages 7 to 12) to support its observations that ChatGPT does not merely store, host or transmit information, it can produce essays, research material, code, creative writing, and other forms of content that did not previously exist in that exact form, hence extending beyond the conventional understanding of an intermediary. The court also recognised that it is a vexed issue and remains unsettled because AI systems operate in response to users instructions and do not function independently, which is why the court refrained from providing a definitive classification and acknowledged that the question may ultimately require legislative clarification as well.
In addition to this, the Court took the view that the IndiaMart’s grievances did not amount to an Intellectual property dispute, as they found no trademark infringement or dilution because any reference to the "IndiaMart" mark was merely descriptive and did not constitute commercial use "in the course of trade" under Section 29(4) of the Trade Marks Act. IndiaMart also hadn’t demonstrated any false or misleading use of its trademark.
Similarly, the Court found that claims of disparagement, trade libel, and injurious falsehood were unsustainable because such claims require the publication of a false statement that harms reputation and since ChatGPT had not published any derogatory statement about IndiaMart, the mere omission of links could not amount to disparagement or libel. The Court relied on Tech Plus Media v. Jyoti Janda, that allegations of unfairness or copyright infringement must be supported by specific pleadings and evidence.
Beyond the immediate dispute, the judgment shed light on the growing difficulty of applying legal categories created for an earlier internet era to generative AI systems. The Information Technology Act was enacted at a time when internet regulation focused primarily on websites, service providers, and electronic communications and therefore existing classifications may not adequately address the hybrid nature of contemporary AI technologies. The Court acknowledged OpenAI's concern that granting IndiaMart's request could trigger floodgates of litigation on similar claims from businesses dissatisfied with AI-generated visibility, however, it clarified that such concerns cannot outweigh genuine legal claims or fundamental rights. The Court suggested that legislative intervention may eventually be necessary.
Conclusion
This judgement not only addressed the visibility issue in AI generated responses, but also whether visibility itself can become a legally protected interest in AI-driven searches? As more and more users rely on AI generated output for their preference rather than traditional search engine output, the power to decide what information is displayed and what is not will eventually become economically significant. The Calcutta High Court through this judgement declined to create any such right through judicial interventions and also highlighted that the existing legal framework is not adequately equipped to address the novel challenges posed by generative AI.
(This blog is based on the judgment in Indiamart Inter Mesh Limited v. Open AI Inc. and Others, 2026 SCC OnLine Cal 5738, decided on May 20, 2026 by the Calcutta High Court, and related reporting by LiveLaw and SCC Times.)
References
- https://www.livelaw.in/high-court/calcutta-high-court/no-right-to-visibility-exists-on-private-ai-platforms-calcutta-high-court-refuses-to-direct-chatgpt-to-display-indiamart-links-536891
- https://www.scconline.com/blog/post/2026/06/03/chatgpt-intermediary-originator-it-act-calcutta-high-court/
- https://indiankanoon.org/doc/198449710/
Related Blogs
Introduction
Freedom of speech and expression is fundamental to democracy and is constitutionally entrenched in Article 19(1)(a) of the Indian Constitution. The explosion of online spaces, brought about by the digital age, in the form of social media, blogs, and messaging apps, has reinterpreted how information is authored, disseminated, and consumed. This digital revolution has galvanised individuals to engage further inclusively in public debate, but has also fanatically magnified the risks of misinformation, hate speech, and threats to public order. Against this background, the judiciary is increasingly called upon to determine the limits of free speech, primarily where state regulation seeks to infringe upon constitutional protection.
Constitutional and Statutory Framework related to Freedom of Speech
The judiciary plays an integral role in balancing the fundamental right of freedom of speech with the regulation of online content, especially during the fast-paced evolution of the digital world. In India, with Article 19(1)(a) of the Constitution guaranteeing the freedom of speech, the courts bear the critical responsibility of protecting this liberty while recognising the State's legitimate interests in restricting harmful or unlawful content on a digital scale. This adjudicatory dilemma is even trickier because the said right has been held by the Supreme Court not to be an absolute one and is subject to "reasonable restrictions" as in Article 19(2), which recognises restrictions in the interest of sovereignty, security, public order, decency, and morality. Freedom of speech, being the cornerstone of democracy in India, does have an umbrella of reasonable restrictions under which the state can regulate any form of speech that infringes upon other equally compelling societal interests. However, with the coming of the internet and other digital communication arrangements, there was a need to develop new statutory instruments, i.e., Information Technology Act, 2000 (IT Act) and Rules made thereunder, including Information Technology (Intermediary Guidelines) and Digital Media Ethics Code Rules, 2021. These enactments attempt to regulate digital content, confronting issues such as hate speech, misinformation, and content that threatens public order. The judiciary's mandate is to interpret the enactments within the constitutional precincts, thus ensuring that the arbitrariness of State action is not aggravated or that the regulation is not overbroad. Judicial Landmark Decisions Affirming Balance The judiciary has played a front-ranking role in elaborating a jurisprudence protecting free speech in delineating legitimate regulation thereof. The Supreme Court judgment in Shreya Singhal v. Union of India, 2015, is seminal. Section 66A of the IT Act was struck down as it was vague and overly broad, causing a chilling effect on online speech. The Court has emphasised that any limitation on speech must be precise and fall strictly within the parameters laid down in Article 19(2). While the Court recognises that harmful online content needs to be addressed, the remedy must not encroach upon free political debate, satire, and criticism vital for democracy.
Following this, the Anuradha Bhasin case clarified the convergence of free speech and online access. The court held that the right to free speech had a vital medium in the form of the internet and that it would have to be an inevitable, proportionate shutdown, and transparent for challenge before the judiciary for any shutdown of the internet. This reaffirmed that restrictions on online speech must be rigorously tested.
Subsequent cases involve limitations on the 2021 IT Rules, whereby such government bodies can demand that “fake” or “misleading” material be taken off the internet. Courts move with circumspection, recognising the government's interest in fighting bogus information but remaining vigilant against over-regulation that can be code for pre-emptive censorship and threatening healthy discourses.
The virtual world raises particular and deeper questions: the viral nature of online speech multiplies its impact, distributing both democratic ideas and abusive material instantaneously. The courts recognise this twinning. While pressurising the legislature and executive to formulate clearer, more precise rules, courts simultaneously act as constitutional Guardians, avoiding breaches of the right with executive excess or vague laws. There is a strain between judicial activism, which promotes constitutional rights aggressively, and the fear of judicial paternalism, courts overreaching into policy arenas. But there is a need for vigilance by the judiciary due to the rapidly changing nature of digital technologies and threats to the freedoms of democracy. The judiciary continues to give contours to free speech and online regulation. There are enforcement issues, such as ongoing abuse of struck-down provisions, such as Section 66A, that the court counters with reaffirmation of constitutional directives. The evolving jurisprudence balances on thin stilts, upholding the democratic spirit of India by securing speech on online spaces and sanctioning reasonable, transparent moderation of harmful speech.
Conclusion
The Indian judiciary's leadership in balancing online content regulation with the freedom of speech is central and refined. The courts continually emphasise that speech on the digital medium is highly constitutionally protected and that restrictions must be legally valid, specific, essential, and proportionate. By classical decisions and constant review of new regulating actions, courts safeguard democratic participation in the digital public domain from unmeritorious censorship. Concurrently, the courts recognize the responsibility of the state in regulating digital ills such as mis recipe and hate speech, demanding parameters that uphold constitutional freedoms and the due process. The balancing act of the judiciary continues to be fundamental in defining India's digital democracy so that free speech can thrive even as the state upholds public order and human dignity in the digital communication age.
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Executive Summary:
Footage of the Afghanistan cricket team singing ‘Vande Mataram’ after India’s triumph in ICC T20 WC 2024 exposed online. The CyberPeace Research team carried out a thorough research to uncover the truth about the viral video. The original clip was posted on X platform by Afghan cricketer Mohammad Nabi on October 23, 2023 where the Afghan players posted the video chanting ‘Allah-hu Akbar’ after winning the ODIs in the World Cup against Pakistan. This debunks the assertion made in the viral video about the people chanting Vande Mataram.
Claims:
Afghan cricket players chanted "Vande Mataram" to express support for India after India’s victory over Australia in the ICC T20 World Cup 2024.
Fact Check:
Upon receiving the posts, we analyzed the video and found some inconsistency in the video such as the lip sync of the video.
We checked the video in an AI audio detection tool named “True Media”, and the detection tool found the audio to be 95% AI-generated which made us more suspicious of the authenticity of the video.
For further verification, we then divided the video into keyframes. We reverse-searched one of the frames of the video to find any credible sources. We then found the X account of Afghan cricketer Mohammad Nabi, where he uploaded the same video in his account with a caption, “Congratulations! Our team emerged triumphant n an epic battle against ending a long-awaited victory drought. It was a true test of skills & teamwork. All showcased thr immense tlnt & unwavering dedication. Let's celebrate ds 2gether n d glory of our great team & people” on 23 Oct, 2023.
We found that the audio is different from the viral video, where we can hear Afghan players chanting “Allah hu Akbar” in their victory against Pakistan. The Afghan players were not chanting Vande Mataram after India’s victory over Australia in T20 World Cup 2014.
Hence, upon lack of credible sources and detection of AI voice alteration, the claim made in the viral posts is fake and doesn’t represent the actual context. We have previously debunked such AI voice alteration videos. Netizens must be careful before believing misleading information.
Conclusion:
The viral video claiming that Afghan cricket players chanted "Vande Mataram" in support of India is false. The video was altered from the original video by using audio manipulation. The original video of Afghanistan players celebrating victory over Pakistan by chanting "Allah-hu Akbar" was posted in the official Instagram account of Mohammad Nabi, an Afghan cricketer. Thus the information is fake and misleading.
- Claim: Afghan cricket players chanted "Vande Mataram" to express support for India after the victory over Australia in the ICC T20 World Cup 2024.
- Claimed on: YouTube
- Fact Check: Fake & Misleading
Introduction
Over the past few years, the virtual space has been an irreplaceable livelihood platform for content creators and influencers, particularly on major social media platforms like YouTube and Instagram. Yet, if this growth in digital entrepreneurship is accompanied by anything, it is a worrying trend, a steep surge in account takeover (ATO) attacks against these actors. In recent years, cybercriminals have stepped up the quantity and level of sophistication of such attacks, hacking into accounts, jeopardising the follower base, and incurring economic and reputational damage. They don’t just take over accounts to cause disruption. Instead, they use these hijacked accounts to run scams like fake livestreams and cryptocurrency fraud, spreading them by pretending to be the original account owner. This type of cybercrime is no longer a nuisance; it now poses a serious threat to the creator economy, digital trust, and the wider social media ecosystem.
Why Are Content Creators Prime Targets?
Content creators hold a special place on the web. They are prominent users who live for visibility, public confidence, and ongoing interaction with their followers. Their social media footprint tends to extend across several interrelated platforms, e.g., YouTube, Instagram, X (formerly Twitter), with many of these accounts having similar login credentials or being managed from the same email accounts. This interconnectivity of their online presence crosses multiple platforms and benefits workflow, but makes them appealing targets for hackers. One entry point can give access to a whole chain of vulnerabilities. Attackers, once they control an account, can wield its influence and reach to share scams, lead followers to phishing sites, or spread malware, all from the cover of a trusted name.
Popular Tactics Used by Attackers
- Malicious Livestream Takeovers and Rebranding - Cybercriminals hijack high-subscriber channels and rebrand them to mimic official channels. Original videos are hidden or deleted, replaced with scammy streams using deep fake personas to promote crypto schemes.
- Fake Sponsorship Offers - Creators receive emails from supposed sponsors that contain malware-infected attachments or malicious download links, leading to credential theft.
- Malvertising Campaigns - These involve fake ads on social platforms promoting exclusive software like AI tools or unreleased games. Victims download malware that searches for stored login credentials.
- Phishing and Social Engineering on Instagram - Hackers impersonate Meta support teams via DMs and emails. They direct creators to login pages that are cloned versions of Instagram's site. Others pose as fans to request phone numbers and trick victims into revealing password reset codes.
- Timely Exploits and Event Hijacking - During major public or official events, attackers often escalate their activity. Hijacked accounts are used to promote fake giveaways or exclusive live streams, luring users to malicious websites designed to steal personal information or financial data.
Real-World Impact and Case Examples
The reach and potency of account takeover attacks upon content creators are far-reaching and profound. In a report presented in 2024 by Bitdefender, over 9,000 malicious live streams were seen on YouTube during a year, with many having been streamed from hijacked creator accounts and reassigned to advertise scams and fake content. Perhaps the most high-profile incident was a channel with more than 28 million subscribers and 12.4 billion total views, which was totally taken over and utilised for a crypto fraud scheme live streaming. Additionally, Bitdefender research indicated that over 350 scam domains were utilised by cybercriminals, directly connected via hijacked social media accounts, to entice followers into phishing scams and bogus investment opportunities. Many of these pieces of content included AI-created deep fakes impersonating recognisable personalities like Elon Musk and other public figures, providing the illusion of authenticity around fake endorsements (CCN, 2024). Further, attackers have exploited popular digital events such as esports events, such as Counter-Strike 2 (CS2), by hijacking YouTube gaming channels and livestreaming false giveaways or referring viewers to imitated betting sites.
Protective Measures for Creators
- Enable Multi-Factor Authentication (MFA)
Adds an essential layer of defence. Even if a password is compromised, attackers can't log in without the second factor. Prefer app-based or hardware token authentication.
- Scrutinize Sponsorships
Verify sender domains and avoid opening suspicious attachments. Use sandbox environments to test files. In case of doubt, verify collaboration opportunities through official company sources or verified contacts.
- Monitor Account Activity
Keep tabs on login history, new uploads, and connected apps. Configure alerts for suspicious login attempts or spikes in activity to detect breaches early. Configure alerts for suspicious login attempts or spikes in activity to detect breaches early.
- Educate Your Team
If your account is managed by editors or third parties, train them on common phishing and malware tactics. Employ regular refresher sessions and send mock phishing tests to reinforce awareness.
- Use Purpose-Built Security Tools
Specialised security solutions offer features like account monitoring, scam detection, guided recovery, and protection for team members. These tools can also help identify suspicious activity early and support a quick response to potential threats.
Conclusion
Account takeover attacks are no longer random events, they're systemic risks that compromise the financial well-being and personal safety of creators all over the world. As cybercriminals grow increasingly sophisticated and realistic in their scams, the only solution is a security-first approach. This encompasses a mix of technical controls, platform-level collaboration, education, and investment in creator-centric cybersecurity technologies. In today's fast-paced digital landscape, creators not only need to think about content but also about defending their digital identity. As digital platforms continue to grow, so do the threats targeting creators. However, with the right awareness, tools, and safeguards in place, a secure and thriving digital environment for creators is entirely achievable.
References
- https://www.bitdefender.com/en-au/blog/hotforsecurity/account-takeover-attacks-on-social-media-a-rising-threat-for-content-creators-and-influencers
- https://www.arkoselabs.com/account-takeover/social-media-account-takeover/
- https://www.imperva.com/learn/application-security/account-takeover-ato/
- https://www.security.org/digital-safety/account-takeover-annual-report/
- https://www.niceactimize.com/glossary/account-takeover/
