With inputs from Vallari Sanzgiri
“It’s absolutely unequivocal that safe harbour is the bedrock upon which we see all this innovation on the Internet today,” said Snap’s Uthara Ganesh during the “Safe Harbor v2.0: What should it look like?” panel at MediaNama’s recent MarketsNama conference. “It is this permissionless environment that has caused so much innovation, [where] we have so many different types of platforms that have been able to exist and survive.”
Safe harbour protects platforms from being held liable for the third-party content they host. The Indian government has been debating on whether to remove these platform protections in the upcoming Digital India Act—describing it as the reason behind the “toxicity” on the Indian Internet. Instead of nixing safe harbour, the panelists reiterated that it has to be retained in order for digital innovation to continue.
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“Safe harbour allows entities to shape shift and take on different models and try to find a product market space,” added MediaNama’s Editor Nikhil Pahwa. “This is something pretty much every founder will tell you—that when they start, they don’t really know what their business is going to be two years from now, or even half a year from then. So, that evolution that safe harbour enables is important to protect.”
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.
What safe harbour is and isn’t: “Safe harbour doesn’t mean that a platform will never have to pay a fine for doing something wrong,” observed the Centre for Communication Governance’s Vasudev Devadasan during the discussion. “Safe harbour means that you have a statutory defence for unlawful third party content on your platform.”
There’s a fallacy in the idea that platforms control the content on their platforms: Devadasan’s definition is important because companies often don’t have full visibility over the content on their platform—making the benefit of the doubt that safe harbour grants all the more necessary, argued Salesforce’s Vivek Abraham.
“At the end of the day, laws are confined to jurisdictions,” argued Abraham. “Nothing stops me [as a hypothetical bad actor] from going to a country which doesn’t have these laws [restricting bad practices] and attacking the place I want to attack. My point is, there’s a fallacy in this whole issue of [platform] control [over content]. For platforms, if they are really and truly open, there isn’t much control that you can exert on participants who want to behave badly. There isn’t much visibility. You can do programming and algorithmic control at the beginning [of your operations] to check for child sexual abuse material and other illegal materials floating around your platform. Beyond that, you really can’t algorithmically or manually detect what’s happening on your platform.”
“I don’t think any company wants to be seen as the facilitator of something illegal, per se,” noted Abraham. “There are always bad actors in the ecosystem, you always need to regulate them. But, if you’re talking about mainstream companies, they don’t want to be seen or branded in a certain way. So, one has to assume good intent there.”
Removal of safe harbour will adversely affect APIs, tech market: Removing safe harbour will completely decimate the market, Abraham added. “I’ll have no idea what my API [Application Programming Interface] is being used for, [for example] if it’s being used to manoeuvre some machinery or bomb. If I don’t have that visibility, how am I supposed to take liability for what the outcome is? So, I might as well just have very regulated products, saying [to consumers] that these are the three options that you can do [that is, use the product for]. You either choose [to abide by them] or you walk the highway. I think it’s going to have a very negative effect if there’s no safe harbour for APIs or generative AI, or anything that’s essentially a tool, where you can use it in a general way. The liability is very impossible to define in that context.”
Safe harbour promotes good ecosystem behaviour, improves competition: “Safe harbour is meaningful only for large ecosystems,” said Abraham. “That’s where you want to regulate for impact … to incentivise good behaviour. You [the government] want to start co-opting the trust and safety teams of these large organisations or platforms as part of your process to regulate or protect cyberspace. That’s what safe harbour should be about.”
“Safe harbour is also about the small guy coming in [to the ecosystem] even without a trust and safety team and building something that scales,” added Pahwa. “This can’t just be about protecting larger businesses.”
Aside from the benefits, is it time to reflect on safe harbour’s societal impacts?: “This is a good moment to reflect on our learnings as a society over the last two decades [of the Internet],” Ganesh noted. “We can’t deny the fact that there have been some impacts of giving safe harbour to platforms, on things like misinformation or democracy or free speech. Safe harbour absolutely should absolutely exist—but it should not be an absolute free pass given to platforms to whatever they want to do, [so] that they solve for the problem [they create] post facto.”
There’s a reason safe harbour is being challenged across the world: “Large platforms making free speech arguments [while citing safe harbour] after having profited off the speech on their platforms strikes me personally as a little disingenuous,” Ganesh observed. “From that perspective, it’s not a coincidence that India, the United States, and many countries are grappling with this safe harbour question.”
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