“I can certainly tell you that this 2008 amendment to the IT Rules that first brought the safe harbor concept of section 79 for these intermediaries […] I’m happy to go out on a limb and say that one decision is one of the reasons that we are seeing so much of toxicity, so much rise of misinformation online,” India’s IT Minister of State Rajeev Chandrasekhar remarked in a Twitter Spaces conversation on April 13.
“This free for all type of unaccountable conduct and behavior online, where effectively nobody is ever held accountable for illegalities, crimes, user harm, misinformation, and if there is somebody held accountable, it’s an exception rather than the rule, that is the status quo,” Chandrasekhar added.
“And if it finally comes to a point, the future construct may be to do away with the Section 79 type of immunity and safe harbor completely and let the relationship between the user and the platform be a lot more direct,” Chandrasekhar stated (emphasis added).
Safe harbor protection under Section 79 of the IT Act, 2000, currently protects intermediaries like social media platforms from being held liable for the third-party content they host.
Why does this matter: The Minister’s comments point to an increased likelihood of the upcoming Digital India Act removing safe harbor protections, or at the very least, diluting these protections. But safe harbor is the bedrock of the internet as we know it. It is one of the biggest reasons we have a flourishing internet ecosystem today. For example, if social media platforms were held liable for all types of content on their platform, most of them, if not all, would have been mired in legal lawsuits before even reaching a critical mass. But this is not to say that platforms should be left completely unaccountable given how platforms are increasingly playing a role in deciding what content is shown to users. It would be interesting to see how India navigates this important issue as it could shape the future of the internet for decades to come.
All governments are scrambling to deal with this issue: “As of today, governments all around the world, including in India, we are scrambling to deal with the increase in the volume of problems and user harm without the intermediaries, till very recently, showing any signs of being accountable and hiding behind all this very obtuse language of ‘AI bots’, ‘we use automated algorithms’, and so on and so forth,” Chandrasekhar said. The other country where the safe harbor is under threat is the US, where the Supreme Court is currently hearing a case on Section 230. You can find more about this case in the below stories:
- “These Are Not The 9 Greatest Experts On The Internet”: US Top Court Hears Case That Could Reshape The Internet [read]
- How A Landmark US Supreme Court Petition May Shape The Future Of Platform Liability Online [read]
Platforms will have to start being more accountable: “I am prophesizing that going forward, and we are taking these steps that basically signal this, that platforms will have to be accountable for the content they have,” Chandrasekhar informed. “And what do I mean by accountability? Accountability does not mean that they will constantly be directed by the government to take down this and that. Accountability will be that they will have a much more direct legal relationship between those who post content on their platforms, those who consume content on the platforms, and those who, in that tripartite arrangement, are aggrieved by what is posted.”
As indicated by Chandrasekhar, the Indian government has indeed notified various regulations in recent years to increase the accountability of platforms. The IT Rules, 2021, and the amendments to these Rules from October last year and April this year, are all examples of stricter regulations for intermediaries.
“Why should any platform, a large social media platform, ever have any sort of immunity for the content that they cover? Why is their responsibility and accountability for their content not unambiguous and more total?” — Rajeev Chandrasekhar
Not the first time the IT Minister of State has suggested doing away with safe harbor: “There is a legitimate question, should there be safe harbor at all,” Chandrasekhar asked in March at the consultation on the Digital India Act, 2023. For more on the contours of the Digital India Act, here are our 30 talking points from the first Digital India Act consultation.
- The Government, The Platform, The Individual: Who’s Responsible For Keeping The Internet Safe? #NAMA
- Is The Provision Of Safe Harbour Protection For E-Commerce Platforms In India Under Threat?
- “Should There Be Safe Harbour At All?”: 30 Talking Points From The Digital India Act Consultation
- The Snapdeal Cases: Does Safe Harbour Protect “Unlicenced” Third-Party Sales Of Sex Drugs?