Taking away safe harbour, as the government has proposed in the upcoming Digital India Act, won’t make platforms work harder to take down inflammatory speech, argued Sachin Dhawan at the “Regulating Speech and Content” panel at MediaNama’s MarketsNama conference last Friday. This approach ignores another elephant in the room—platform dominance and competition in free speech markets, noted Dhawan, a Programme Manager at the National Law University of Delhi’s Centre for Communication Governance.
The Internet’s free speech promises are juxtaposed against another reality—its ability to spread content to millions of users at lightning speeds. This power to widely disseminate information perceived by the government as ‘harmful’ could explain why the Indian government is so keen to reduce safe harbour protections. Stakeholders have criticised this approach, seen worldwide, for its potential to severely impact free speech online. Platforms may broadly restrict access to speech to avoid liability for it. A reminder: safe harbour refers to legal protections that prevent platforms from being held liable for the third-party content they host.
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As the session’s co-panelists—Internet Freedom Foundation’s Tanmay Singh and SFLC.in’s Radhika Jhalani—poured over the current inefficiencies of these online censorship and content moderation laws, Dhawan added a competition angle to the debate. “Through merger and consolidation, we find ourselves in a position today where intermediaries are in-charge [of free speech online],” Dhawan explained. “The problem is that governments, whether here or elsewhere, recognise these problems, but the solutions they offer makes the problem worse.”
“They [governments] say platforms have become too powerful, let’s do away with safe harbour, because that will make them more responsive to harmful content online. But, that’s not actually addressing the fact that if you take away a platform’s safe harbour, it will only further entrench existing, powerful mainstream platforms even more. They have the tools, and investments in proactive [content] monitoring to deal with the increased liabilities. It’s start-ups and smaller platforms trying to bring competition into the marketplace that will suffer, because they don’t have the financial means to invest in heavy-duty [content] filtering tools [emphasis added]. They’ll probably go out of business—and a space lacking in competition, will become even more concentrated [in the hands of a few companies].” — Sachin Dhawan, Centre for Communication Governance, National Law University, Delhi
MediaNama hosted this discussion with support from Salesforce, Google and Mozilla. Internet Freedom Foundation, and our community partners, the Centre for Internet and Society and Alliance of Digital India Foundation.
Holding safe harbour ransom may not be fair to all tech platforms: Aside from the anti-competitive outcomes of doing away with safe harbour, Dhawan argued that the proposal itself may be holding tech platforms to an unreasonably high level of regulation.
“Even with regard to misinformation and other speech-related problems, my contention is that it’s not that different even in the offline world,” Dhawan added. “Look at the mainstream [broadcast] media—and the claims [for example] of election fraud raised in the 2020 [US Presidential] elections … These claims were beamed into millions of homes, [but] there is no safe harbour or surveillance capitalism crisis [raised] there. So, why do we have this sort of tech exceptionalism towards online platforms? I’m not saying platforms are blame-free [when it comes to perpetuating free speech issues]—but things are not black and white.”
So, how can the Digital India Act simultaneously deal with competition and safe harbour for content?: “Safe harbour should be retained in the Digital India Act,” Dhawan concluded. “If you remove safe harbour, you only hurt users, especially the most marginalised and vulnerable. I do think safe harbour can be expanded on though—you can bring users into the process, whether under Section 69A of the IT Act [the blocking process] or Section 79 [the safe harbour clause].”
“The other thing is to decouple safe harbour, or a platform’s liability for third-party legal content, from the other basic responsibilities and due process obligations that platforms should follow [emphasis added]. The [European Union’s] Digital Services Act is a good example of that. Lots can be done in terms of transparency and accountability [in platform content moderation], like having a human rights-compliant content moderation regime for platforms where they follow basic norms and safeguards, like notifying users, keeping the complainant in the loop, and more.” — Sachin Dhawan, Centre for Communication Governance, National Law University, Delhi
“But, ultimately, we have to move away from a system where we have just two or three platforms dominating the marketplace [for speech online],” Dhawan argued. “No matter what reforms you introduce, you’re not going to have systemic change unless you go beyond the current situation of a few platforms [in the marketplace]. That can be done through interoperability … or empowering users to choose different filtering techniques, so that feeds aren’t based on what the platforms want you to see, but based on what your choice is. That is the range of options out there.”
Notably, India’s proposed law dealing with competition in digital markets largely seems to arise out of commerce-related competition concerns.
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