“Should online intermediaries be entitled to Safe Harbor at all,” Minister of State for Electronics and IT Rajeev Chandrasekhar asked Thursday as he presented a comprehensive overview of the forthcoming Digital India Bill — the proposed successor to the decades-old Information Technology Act. 2000
The proposed law will impact a wide range of businesses across the internet, including social media, e-commerce and artificial intelligence-based platforms.
The answer to Chandrasekhar’s question, should the government not rely on the current regulatory status quo, could bring about a sea change in the way a crucial piece of internet infrastructure works – from big tech platforms like Google, Meta and Twitter to internet service providers like Reliance Jio , Bharti Airtel and Vodafone Idea – provide services to their users.
First, what is the new law for the Internet?
Currently, the Information Technology Act, 2000 is the central framework that regulates entities on the Internet. However, the law needs to be updated as it was designed for an internet era very different from today’s internet. Given its limitations, the government has also at times found it difficult to legislate as the overriding law is limited in scope.
Chandrasekhar said that the main goals of the new Digital India Bill are to ensure an open and safe internet in the country to ensure users’ rights and reduce the risks to them online; accelerate the growth of technological innovation. The bill is a key pillar of an overarching framework of technology regulations the Center is building, including the draft Digital Personal Data Protection Bill, 2022; Indian Telecoms Act, 2022; and a policy for the management of non-personally identifiable information.
What is “safe haven”?
Safe Harbor – as mandated by Section 79 of the IT Act 2000 – is a legal immunity that online intermediaries enjoy from content posted by users on their platforms. This is available as long as those platforms adhere to certain due diligence requirements such as: B. Censoring content when required by the government or courts. The concept originally came from Section 230 of the United States Communications Decency Act, which has been described as “one of the fundamental laws behind the modern Internet”.
This is one of the main reasons behind the meteoric rise of internet giants like Facebook, which defined the Web 2.0 era that allowed users to publish content on the internet. Tech experts believe Safe Harbor is a key principle in ensuring freedom of expression online, as platforms only have to respond to expressions that are deemed illegal.
So why reconsider the norm?
Chandrasekhar said today’s Internet presents new challenges.
“In the 2000s, intermediaries were synonymous with safe haven, but today they have morphed into multiple types of participants on the internet that are functionally very different from one another and require different types of guard rails and regulatory requirements. In fact, the question is how many of them should be entitled to safe haven,” Chandrasekhar said.
“What should we consider as a safe haven for intermediaries? Who should be entitled to Safe Harbor and should the government even arbitrate between platforms and those who are harmed by content on them?” said the minister. “The variety and complexity of the platforms that exist on the Internet today has increased, and thus the legitimate question arises – should there even be a safe haven? If a safe haven is needed, who should get it?”
The idea behind revising the safe harbor concept stems from the fact that intermediaries have become more complex in the two decades since the IT law was drafted, Chandrasekhar said. He also said that because of this complexity, it is necessary to classify different types of intermediaries and issue appropriate regulations for each of them.
“Whether we call them different types of intermediaries or different types of players on the internet or types of service providers is a decision we have to make. Be it e-commerce, digital media, search engines, gaming platforms, major social media intermediaries and last but not least, fact-checking portals,” said Chandrasekhar.
The Indian Express reported in December 2022 that the government was considering classifying intermediaries and separate standards for them, and could also include fact-checking platforms.
Under the Information Technology Rules 2021 and subsequent amendments thereto, the government has reined in safe haven by introducing additional due diligence requirements such as: More recently, three government-appointed appeals committees have also been formed to adjudicate on unresolved user complaints.
In fact, not only India but countries around the world are reconsidering their respective safe harbor norms, including the US where the concept originated.
What else will the Digital India Bill deal with?
The proposed law will also regulate a number of crimes that the government believes are unique to the online space. Chandrasekhar said that “arming misinformation” under the guise of free speech is not contemplated and governed by the law. Other harms include cyberbullying, doxxing, and identity theft. The Indian Express had previously reported on all of these damage categories that the government was investigating.
An effective decision-making mechanism is also being explored within the framework of the Digital India Bill. The mechanism should be easily accessible, provide citizens with timely remedies, resolve cyber disputes, and create cyber justice for the future, he said.
When can a bill be expected?
Chandrasekhar said the center will hold extensive consultations before finalizing the bill. However, he remained non-binding on the deadlines for when the bill can be finalized.