With minister of state (MoS) for IT Rajeev Chandrasekhar saying that the safe harbour status for social media intermediaries like Twitter, Facebook, etc, may be up for review in the upcoming Digital India Act, experts and policy advocacy groups said such a step would sound a death knell for such platforms. According to them, without safe harbour provisions, there won’t be any intermediaries.
Currently, under Section 79 of IT Act 2000, intermediaries are protected from any legal liability for content on their platforms because it belongs to a third party and the ownership does not vest with them. If they lose the safe harbour status, they would also lose the legal immunity for the content posted on their platforms.
“If safe harbour is taken away, the intermediaries, in order to protect themselves from liability, would censor online content and restrict the civil liberties of the citizenry. Hence, rather than resolving the online safety and content integrity challenges, this will lead to new problems of mass censorship and undermine the free and open nature of the internet,” said Shruti Shreya, programme manager at The Dialogue, a public policy think tank.
“Increasing accountability from the platforms by diluting the safe harbour protection is not a sustainable approach,” Shreya said, adding that safe harbour should only be taken away if the intermediaries, despite receiving an actual knowledge regarding the illegality of content, fail to take action.
“The validity of Section 79 of the IT Act has been upheld by the Supreme Court in the Shreya Singhal case in 2015,” Ruby Singh Ahuja, senior partner, Karanjawala and Company, said. “Any dilution of the safe harbour provisions will not only be in direct contravention of the law laid down by the SC but will also not be in consonance with law as it exists in Western parts of the world,” she added.
In a recent amendment to the Information Technology Rules 2021, the government tightened the condition for safe harbour by asking companies to comply with additional due diligence requirements such as appointing grievance officers to address users’ issues, removal of misinformation, illegal, and other such contents within 72 hours, among others. Besides, the government also formed three grievance appellate committees to handle unresolved user grievances.
“While the government has not given a final view on safe harbour status for different classes of intermediaries, a complete removal of such protection will make their business fundamentals flawed. Reviewing billions of pieces of content to ensure compliance and removing them from their platforms will make such companies gatekeepers of the internet. It cannot be the role of private companies that do not have the backing of law,” said Udit Mendiratta, partner at Argus Partners.
According to Mendiratta, these platforms cannot be made the arbiters of truth and there is a possibility that the government may get sweeping powers to control online content through intermediaries, thereby adversely affecting free speech.
In the first round of consultation on the draft Digital India
Owing to the evolved and complex structure of intermediaries over time, the government believes the need for revisiting the safe harbour status and classify different types of intermediaries and form different regulations for them.
“How do we pick and choose which intermediary is ‘deserving’ of protection? All of us want and use the online products and services supplied by intermediaries such as Twitter, etc. Without safe harbour, we may no longer have access to such platforms at all,” said Vikramjeet Singh, partner at BTG Legal. “Making online platforms directly liable for the content they carry, may change the Internet beyond recognition,” Singh added.