The debate on safe-harbour protection for social media companies is again raging, with the government starting discussions on whether they should have such protection in the first place, as opposed to the earlier stance of warning them of revocation of such cover for violation of rules. Jatin Grover takes a look at the debate
Safe harbour protection
Safe harbour is a legal provision that provides protection from a liability or penalty. Under Section 79 of IT Act 2000, intermediaries such as Twitter, Facebook etc are protected from any legal liability for content posted on their platforms by the users. As per the law, since the content posted on the social media platforms is owned by the users and does not not belong to such companies, the provision gives them protection from prosecution.
The concept comes from Section 230 of the US Communications Decency Act. The business model of all social media companies relies on the safe harbour principle. However, under India’s IT Rules, they are tasked with due diligence and removal of any illegal content or misinformation, as defined by the law, within 72 hours.
Behind the government relooking safe harbour cover
There are different forms of intermediaries like e-commerce, digital media, gaming platforms etc, and their functions are different from each other.
“There is a greater diversity and complexity… and therefore, there is this legitimate question – should there be a safe harbour at all? If there is a need for safe harbour, who should get it,” asked Rajeev Chandrasekhar, minister of state for electronics and IT. The Centre is looking to form a separate set of regulations for each class of intermediaries. Social media companies have not been able to handle grievances of users pertaining to removing some explicit content, prompting the government to form grievance appellate committees. In some cases, even the warning of loss of safe harbour protection has been issued to companies if they fail to handle these issues.
Need for the cover
There are billions of content pieces posted by the users. Sans safe harbour, social media firms become solely responsible for the content. Removing safe harbour will shake their business fundamentals given they could face multiple content-related legal challenges. Further, it is impossible for them to go through each piece of content and apply algorithms for removal of illegal content.
Users & safe harbour
If safe harbour is taken away, the intermediaries, to protect themselves from liability, will censor content and restrict the civil liberties of the citizens. Hence, rather than furthering online safety and content integrity, this will lead to mass censorship, and will undermine the free and open nature of the internet. This will be a direct threat to free speech, as a regime can come in and control the narrative via content that is eventually allowed to be posted.
Experts on what could lie ahead
The government will bring the provisions under the Digital India
While experts are mostly aligned on the aspect of different regulations for different intermediaries, for social media companies, they want the government to retain the safe harbour cover. Increasing the platforms’ accountability obligations by diluting the safe harbour protection is not a sustainable approach, they said, adding that the cover should be withdrawn only if the intermediaries, despite receiving an actual knowledge regarding the illegality of content, fail to take action. Since the Supreme Court upheld the Section 79, any dilution of the safe harbour provisions will be in direct contravention of the law as interpreted by the SC.
According to experts, such a step would sound the death knell for such platforms as, without safe harbour provisions, there won’t be any intermediaries.