BJP leader Tejasvi Surya has urged the government to repeal safe harbour protections guaranteed to internet intermediaries in India, declaring the protections as “unconstitutional” and ultra vires to the IT Act, 2000. He called for new rules to govern social media platforms, to protect fundamental rights, “especially those of the nationalistic approach”. 

Surya brought this up during the zero hour of Lok Sabha on Wednesday evening. 

The Intermediary Guidelines, while laying down what content platforms can prohibit, “go far beyond” the scope of what can reasonably be restricted under free speech laws, Surya said. “They are problematic because they empower private foreign enterprises performing essentially a public function to act as censors of free speech without Government oversight, thus effectively and severely impacting safeguards of fundamental right to free speech,” he declared.

These guidelines are not only ultra vires the parent statute, but also unconstitutional as the grounds they provide for are so wide that they will fail the standards  of  constitutionality set out by the Supreme Court in Shreya Singhal case while striking down Section 66(A) of the IT Act Tejasvi Surya 

Surya said the trigger was the recent controversies regarding censure of free speech by Facebook, Twitter, and their affiliates in India. He said the controversy poses “significant constitutional challenge” and amounts to “unreasonable restriction of free speech” and illegal interference during elections. Facebook was recently accused of favouring BJP leaders and shielding hate speech made by them for fear of hurting its business prospects in India. Hate speech posted by BJP politicians, including T. Raja Singh and Shiladitya Dev, were left up on Facebook for years and not removed, as Surya seems to be suggesting. In fact, it was left up at the intervention of Facebook’s top policy executives in India. 

Surya was suggesting that platforms such as Facebook and Twitter should be passive and should not be removing any content. Their purpose is supposed to be limited to processing, storing, and transmitting of data and “does not include intervention on the content of users”, Surya said.  “An intermediary receives protection that a regular publisher does not receive,” he added. 

The Indian government is yet to finalise proposals to amend intermediary liability protections granted under the IT Act, 2000. In December 2018, nearly two years ago, the government had first proposed amendments reducing protections, and making internet intermediaries more liable for what users do on their platforms. It’s important to remember that any change or repeal of such protections do not simply impact social media companies, but all internet intermediaries, including ISPs, a blog, a cloud service provider, browsers, and even services such as GitHub and Wikipedia. 

MediaNama’s take: When the government proposed diluting safe harbour protections in 2018, it was feared that they would lead to censorship and a prior restraint regime, where internet intermediaries over-censor and remove content that may not be violative, simply to ensure compliance with laws. 

Surya’s declaration that the safe harbour is unconstitutional and should be repealed to protect free speech does not have any factual basis. Safe harbour protections, including under Intermediary Guidelines Rules, protect free speech. Requiring actual knowledge, such as by means of a court order or through internal flagging mechanisms, ensures that content removal follows due process and is not arbitrarily removed. While it is debatable whether social media platforms are truly passive and neutral intermediaries, whether removing safe harbour protections will harm free speech is not up for debate. It inevitably will.