The debate on Safe Harbor has come full circle, Alok Prasanna Kumar, Senior Resident Fellow at the Vidhi Centre for Legal Policy, said at MediaNama’s discussion in Bengaluru on the governments attempts to amend Intermediary Liability protections. This discussion was held under the Chatham House Rule, but Prasanna Kumar chose to waive that for his opening address. MediaNama is hosting another discussion on Intermediary Liability protections in Delhi on the 7th of February. Details here.

“Safe harbor rules”, Prasanna Kumar said, “uses a particular metaphor to say that if you’re in this particular area you are protected from the force of the law. These Safe Harbor rules apply in various different statutes, including tax statutes. This context came from US in the Communication Decency Act, where it says if you meet some criteria you won’t be hit by laws on the content of your site. The arguments made, which held the field for many years, is that this is a nascent industry, which can’t be burdened with such liability, so we need to protect that so they can grow.”

However, the idea of Safe Harbor goes beyond the Internet, and well before 1996: “One of the first places where you can read about this question (of Safe Harbor) is from English Common Law. I’d recommend Hickey’s Bengal Gazette, where this guy ran the first newspaper in India. He published letters written by other people. It was anonymous, by people who knew how East India Company was working, they’d write letters to him, and he’d publish. It’d be everything from mild gossip to asking the company army to mutiny. He did publish a letter requesting mutiny. When he was sued by the then-British East India Company for libel, he took the defense that I’m not writing or saying any of this, it’s other people’s content. Common law then held him liable. This is the background under which all the law has developed.”

Things have changed

Prasanna Kumar said that things have changed for the Internet: the Internet is largely controlled by a small set of companies, and is “replicating real world power issues where people with more power are able to drive people without it off the platform because they can organise better or troll them or so on.”

He felt that something needs to change, and that is being recognized. “Germany last year introduced the Network Enforcement Act, which basically imposed a liability on social media companies with more than 2 million users in Germany to take down content which violated the laws of Germany. It didn’t create any new offenses, which is important. It says if any content that is already punishable under German law, and that includes everything from hate speech to Nazi propaganda, any other speech which would be punishable, if anyone points it out, you have to take it down, give people an opportunity to respond. If you fail to do so, there are civil penalties.” It’s been a year, and it’s not clear if online abuse has reduced, or whether there have been too many false positives. “There was also an allegation that it was being misused against a right wing party called the AfD.”

Rethinking Safe Harbor: the problem statement

“We have to recognize a few facts,” Prasanna Kumar said. “One, the internet is not this general decentralized thing that gives upstarts an advantage. We have to accept that some companies based out of Silicon Valley are among the largest conglomerates the world has ever seen that enjoy economic power that nobody new has. They’re also out of reach of almost every country in the world except the US, and we can’t leave content regulation to just the US — their constitution and institutions may be good, it can’t be left to that domestic constraint.”

“Second point being, the tech has also changed. One of the underlying concerns for safe harbour rule was that there’s so much content, it’s simply not possible to filter it. Which was fair. Another aspect is it’s other people putting it up, and we can’t preemptively stop people from putting it up. That has changed. “For example, YouTube can preemptively censor videos that they think can be violating copyright through ContentID. If you put up copyright content, YouTube checks content against a database.” Also, “what you see is not what you get — what you see is what the intermediary wants you to see. It’s what the algorithm wants you to see. They believe that if they put certain content out there, it’s no longer a simple function of the technology, it’s also the business. The business influences the way the technology functions. Which means that they’re no longer dumb pipes or dumb carriers.

“One challenge I see with the framing of [these amendments] with social media, WhatsApp is that they’re not the only intermediaries out there. Therefore do we really need modification of these rules to achieve that purpose? I’d start with the question saying — and this was asked in the meeting with government — what is their problem statement? What are they trying to solve?”

“I’d say the problem statement they’re trying to solve is, how do we allow for people to communicate on social media in a safe manner? Because let’s face it, there are going to be a lot of other smaller intermediaries. There may be people who get caught in that, and we should be careful about catching people we don’t want to. How do we ensure that people can use these systems safely without causing harm to others, and without affecting our general political establishment? I’d frame it that way. There may be others who get accidentally caught.”

“Given last few years, what really this is about is to say what costs are we going to impose on this intermediary, social media or others. How much burden do they bear for content on their website?

“If this is a problem we need to solve, is this the right place to solve it? I’d like you to dwell on that.”

The rules are badly drafted

“They don’t know what they’re trying to do and don’t have immersion in concepts. They know these things are done in other countries, but are not absolutely sure this is how it should be done. I can’t reject [these amendments] outright, but what can be done is to come up with constructive set of suggestions to say this is how intermediary liability can be done in India.”

“From a law perspective, one of the discussions we’ve heard is that this is an exemption provision you’re using for enforcement.”

“That’s because it’s drafted very badly. I haven’t seen how it fits into the context of the IT Act. I think the scope of exemptions is what is being argued here. So far the exemption was so much, and now we want to narrow it. Instead of a discussion into how we narrow it, we have gone straight to enforcement, should you have an office in India, this and that… I think the rules could have taken more effort to see what could be the scope of the exemption, when you can or cannot get it, and address minor aspects.

No clarity on what constitutes offenses for intermediaries

“If you even look outside the rule in the main provision, notwithstanding anything in any other law, no intermediary shall be liable for third party content. That doesn’t provide you answers to which cases intermediaries are actually liable. Just saying they’re not liable for certain content for not following guidelines doesn’t automatically make them liable.”

[On the Delhi HC judgment on safe harbor] I’ve written a very long criticism of this judgement, because what happened in this case was they didn’t even find liability in the first instance. Then they asked intermediary to take down the content. They didn’t even examine if this is a trademark violation case. This partial judgement is fairly good in that it lays down certain liability on intermediaries. But it doesn’t tell you what is your liability.”

“…we have no clarity, even from this judgement on what constitutes [unclear] for different offences, and what can be unlawful. This is a huge problem, because other jurisdictions have dealt with this with good jurisprudence. This needs a typology of ‘unlawful’, where it says that ‘unlawful’ content and speech. Unlawful content and speech ranges from one end of the spectrum, where everyone knows something is evidently unlawful. On the other end is copyright and trademark infringement, which you can’t always be certain of because there is so much in the law about what is lawful or not there.”

“Judicially these principles should develop, and if they don’t we need to legislate upon the markers of actual liability before we talk about what takes away that liability.”