“First, they come for social media. Then, they come for cloud, then they’ll come for e-commerce and so on and so forth. So it’s important that the industry doesn’t divide itself on safe harbor,” Nikhil Pahwa, MediaNama’s founder said at the Quantum Hub’s discussion on the proposed Digital India Act (DIA) on October 12., waiving Chatham House Rules that were otherwise applicable at the event. (Note: Chatham Rules in a meeting allow the participants to freely use the information received, but the identity of the speakers or of any other participant must not be revealed.)
The discussion also went over the shortfalls in the implementation of the IT Act, the principles people expected to be present in the DIA and their worries surrounding it.
Impact of DIA on safe harbor:
Safe harbor is a provision present under Section 79 of the IT Act, 2000. It currently protects intermediaries, like social media platforms, from being held liable for the third-party content they host. In consultations on the DIA, Chandrasekhar questioned whether there is a need for safe harbor protections.
Pahwa pointed out that the problem at the heart of the safe harbor debate was: When you post something online, is it communication or publishing?
The publishing argument: One participant argued against safe harbor saying: “Why should content platforms be treated differently from other broadcasters when a newspaper has to take vicarious responsibility for what gets printed?” He added that “to get away by saying that we are a platform which provides people with the ability to put whatever content they want and therefore we are protected by safe harbor rules…is an absurd proposition, and especially because you are editorializing at the back end.”
The communication argument: Another spoke and suggested that one must consider if one sends a message via post, the postal system is not responsible for it. Similarly, comparing online platforms to broadcasts is an apples-to-oranges comparison.
Removal of Safe Harbor hampers innovation: “The removal of safe harbor means the internet can’t function,” Pahwa said pointed out. He said that he has been observing a move towards segmented regulation and said that the same pattern would exist with the removal of safe harbor as well: “You will have classes of intermediaries, look at the IT Rules, the streaming platforms say oh we don’t have to worry about safe harbor because its a problem for social media platforms.”
By pitting one industry against another, the government is “giving everyone an opportunity to say, hey we are less worse off than the others,” he argued. In doing so, platforms are ignoring that the removal of safe harbor will affect the internet overall, he said, adding that the removal of safe harbor will adversely affect platforms’ ability to shapeshift and find the right product-market fit for themselves.
To judiciously use the IT act or wait for DIA?
One of the participants said that DIA should have a fast adjudication process. He pointed out that attempts were made to speed up the adjudication process in the IT Intermediary Rules adding that while there is a state and central adjudication mechanism, “the government can do much better in terms of institutionalizing those mechanisms.”
He said that the IT Act has provisions for ensuring the safety of people on the internet and that 70B of the IT Act (creating of Indian Computer Emergency Response Team to serve as the national agency for incident response) gives the agency “powers to be able to issue the directions or advisories or whichever are the requirements of that particular day.” He pointed out that at the current stage, we will have to wait for some time before the DIA takes effect. “Should we continue to wait for the new bill and Act? Or will we utilize what we have within the IT Act?”
Another participant agreed with him and said given that no draft of the DIA has yet been released, adding that “it is somewhat premature to discuss the Act.” He pointed out that while a lot of comments have been made about this Act by India’s IT Minister of State Rajeev Chandrasekhar, it would be incorrect to pin down his comments and expect them to be completely reflected in the DIA.
Guiding principles for the DIA:
Self-regulation or co-regulation for online platforms: “The way to approach this is to see what were the IT rules trying to achieve,” a participant said. She explained that the goals of the IT rules can be divided into three categories: higher accountability of platforms, user grievance redressal, and transparency. She said that while a lot has been achieved in terms of these goals, what the government wants to do with the DIA is to dive deep into online harm. “And that’s not something which a particular stakeholder can address on their own,” she said, adding that the DIA should bring in place “a regime for self-regulation or co-regulation.”
Ex-post regulation as opposed to ex-ante: On the issue of tackling online harms, a participant said that the government should prescribe regulation when harm occurs (called ex-post regulation). Another agreed with him, saying that while the DIA might define certain harms, the most important thing is that the grievance redressal bodies should take the final decision on what “harm” is. Other stakeholders also pointed out that there needs to be a risk-based approach to harms, with each harm having a regulatory approach that is proportional to the risk that they pose.
Clarity on data collection by the government: “I think one of the most important things to look at is that [there should be] clear policies and regulations which should define what information, what data collected by the government, how it is being used and who [all] are accessing that data,” a participant mentioned. He added that the DIA should have clarity in terms of policy ensuring that there is data minimization and that encryption is not compromised. “There must be a mechanism to ensure that that data is only being used for the purpose for which it was collected, and this applies to both government and private [entities],” he said.
Worries surrounding the DIA:
Pahwa pointed out that on one hand, the government wants platforms to be responsible for regulating speech on their service, and on the other, they want to reign in big tech and want to avoid centralization of power with bigger platforms. The participant said that the state wants flexibility, they expected the DIA to be in line with what has been observed with the IT Rules in that, “there have been 4-5 iterations of the IT Rules so far, every year we see something new.” He said the same might happen with DIA with rules coming out every few months.
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