Centre plans to remove liability protections for social media firms
The proposed Digital India Bill plans to make this immunity tighter by putting in place a mechanism similar to licensing.
The Union government is planning to remove hardcoded liability protections for social media companies from the law and instead empower itself to hand out “safe harbour” license-like certifications, people aware of discussions for a sweeping new bill have said, a move that could have far-reaching implications for speech on the web and the policies applying to it.
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Social media companies such as Meta and X (formerly Twitter) are classified as intermediaries according to section 79 of the information technology (IT) Act, which effectively makes them immune from the liability of the content their users post, an approach that has been globally accepted. But increasingly, these companies have been under fire for not fulfilling the conditions that the liability protections are offered with, necessitating a rethink.
The proposed Digital India Bill plans to make this immunity tighter by putting in place a mechanism similar to licensing, an official aware of the matter said, adding that the provisions of the law itself will be “technology agnostic”. “The digital India bill will be forward looking,” this person said, asking not to be named. “There will clear conditions that outline who all are entitled to safe harbour. Instead of it being implied, the government may take a call on who all it will be granted to. The companies will have to fulfil the conditions to be eligible for it.”
This person added that the change has been necessitated by the evolution of the internet, and that the existing approach was a direction taken a decade ago, when the concept of an intermediary was not widely understood. “Technology is forever evolving,” the official said. “Tomorrow there can be new definitions, the bill has to take that into account and hence must be flexible.”
The specific conditions will be delineated in the Digital India Bill, which will replace the IT Act, and align with contemporary technological advancements, the person said, adding that a draft is expected to be drawn up within the next month.
The government has articulated similar objectives of legislative dynamism on the privacy law, which was cleared by parliament during the monsoon session. It said the personal data protection act has broader provisions that will be fine-tuned via rules, but experts have said that this has meant privacy protections itself remain too fluid.
This plan too drew similar concerns. “A licensing-like approach to ‘safe harbour’ is without precedent in the democratic world. Even the much-debated Digital Services Act framework in the EU mainly imposes varying levels of obligations on based on the type and scale of a service, but does not operate on the presumption that safe harbour doesn’t apply by default,” said Prateek Waghre, policy director, Internet Freedom Foundation (IFF).
Waghre added that the “closest parallel appears to be the People’s Republic of China where internet services must obtain various kinds of licenses / clearances / permits in order to operate, and even then a wide range of onerous obligations continue to apply, along with a threat of revocation of any licenses/permits”.
Section 79 of the IT Act, 2000, absolves social media firms of liability for third party content. “An intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him,” the section states.
The government has also proposed to include a wider class of digital service providers, such as search engines, ad technologies, artificial intelligence, e-commerce and gaming platforms, and regulate them as intermediaries under the digital India bill, along with social media companies, digital media and over the top platforms.
“There is a need for a different set of rules for each class of intermediaries,” union minister Rajeev Chandrasekhar said at a public consultation for the pending legislation in March. “There is a question about how many different types of intermediaries today are deserving of safe harbour. Internet in 2000 was a place of goodand a place to do good. Now, it is also a place of criminality and user harms.
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(We need to ask) should there be safe harbour at all for intermediaries?”
The bill may also contain ownership standards for anonymised data stored by intermediaries, disclosure norms for the data collected and monetization rules for user and platform generated content.
The bill proposes adjudications for user harms such as revenge porn, cyber flashing, dark web, defamation, cyberbullying and doxing, and also suggests age-gating addictive technologies and protect minor’s data on social media, gaming and betting applications, people aware of the matter said.