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Upcoming Digital India Bill May Do Away with Prevailing Safe Harbour Regime: Report

The government giving itself power to issue safe harbour licenses shifts the status quo, as instead of being given to companies by default, now they will instead be handed out to qualifying companies.

The Indian government may do away with longstanding safe harbour protections in the upcoming Digital India Bill, Hindustan Times (HT) reported over the weekend. Sources speaking to HT added that the government may give itself powers to issue safe harbour “license-like certifications”. They added that the “technology agnostic” law will outline conditions for companies that are entitled to safe harbour protections.

The sources said that a draft of the Bill (which is set to replace the Information and Technology Act, 2000) will be drawn up within the coming month.

Held under Section 79 of the IT Act, India’s safe harbour laws currently protect intermediaries (or platforms) from being held liable for the third-party content they host.

Why it matters: The approach shifts the status quo of how safe harbour protections are currently granted to platforms. Instead of granting them by default to platforms, they will be handed out to qualifying companies instead.

This could significantly impact the growth of tech companies as well as free speech online. As we’ve previously reported, safe harbour laws have often been described as facilitating the growth of the Internet over the years, as well as free speech online. That is, tech companies may not have taken off at all if they were held liable for every piece of content their users generate.

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However, this reported move by the Indian government follows top IT ministers’ discontent with how safe harbour protections have been applied over the years. The ‘free pass’ for liability granted to companies has allegedly led to the rise of toxicity and misinformation online, with MoS for IT Rajeev Chandrasekhar adding at a consultation for the Digital India Bill in March:

“There is a legitimate question, should there be safe harbour at all?,” Chandrasekhar asked. “If there is a need for safe harbour, who should be entitled to it? The whole logic of safe harbour is that platforms have absolutely no power or control over the content that some other consumer creates on the platform. But, in this day and age, is that really necessary? Is that safe harbour required?”

At a Twitter Spaces discussion in April, Chandrasekhar elaborated on his misgivings with the provision, saying “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.”

Different rules for different intermediaries: As Chandrasekhar hinted at in March, the Bill will also create separate classes of intermediaries, with different regulations for each, HT reported. Chandrasekhar suggested that intermediaries may be split into platforms for e-commerce, digital media, search engines, gaming, artificial intelligence, over-the-top platforms (or OTTs), telecom service providers, ad-tech, and significant social media intermediaries.

HT added that the Digital India Bill may include “ownership standards for anonymised data stored by intermediaries, disclosure norms for the data collected and monetization rules for user and platform generated content”.

The Bill may also propose provisions for user harms like cyber flashing, “dark web”, defamation, revenge porn, doxxing, and cyberbullying, sources informed HT. It could further recommend that “addictive technologies” be age-gated, and that children’s data on social media and gaming and betting platforms be protected.

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