Govt Rethinking ‘Safe Harbour’ in Digital India Bill

Context: With the proposed Digital India Bill the government is planning for reconsideration of safe harbour provisions for internet intermediaries.

About the Proposed ‘Digital India Bill’

• Purpose: The proposed law will replace the decades-old Information Technology Act, 2000.
  • Currently, the Information Technology (IT) Act, 2000 is the core framework that regulates entities on the Internet.
• Need for a new law: The IT Act, 2000 needs an update since it was framed for an Internet era that looked very different from the Internet of today.
  • Given its limitations, the government has also on occasion found it difficult to promulgate rules since the parent Act is limited in its scope.
• Core objectives of the proposed Digital India Bill:
  • To ensure an open and safe Internet in the country to ensure users’ rights and reduce risks for them online.
  • To accelerate the growth of technology innovation.
• Key aspects of the Digital India Bill:
  • An overarching framework: The Bill is a key pillar of an overarching framework of technology regulations the Centre is building, including:
    • The draft Digital Personal Data Protection Bill, 2022;
    • Indian Telecommunication Bill, 2022; and
    • A policy for non-personal data governance.
  • Classification of internet intermediaries:
    • Present scenario: Under the Information Technology Act, 2000, there is no classification of intermediaries.
    • Proposal: The new law will prescribe different kinds of intermediaries because their regulation must be different. Intermediaries will be bucketed as social media platforms, e-commerce platforms, AI platforms, fact-checking platforms etc.
• New Regulator for Internet: The new Bill is also expected to prescribe a new regulator for the online space along the lines of the Telecom Regulatory Authority of India (TRAI) or the Securities and Exchange Board of India (SEBI).
• Regulating emerging technologies: The new law is also expected to introduce penal consequences for violations and prescribe governing provisions for emerging technologies like the metaverse and blockchain.
• Regulation of online crimes: The proposed law will also regulate a range of crimes that the government thinks are unique to the online space.
  • The law will aim to curb the weaponisation of misinformation” under the garb of free speech, and other harms such as cyberbullying, doxxing, and identity theft etc.
• Cyber jurisprudence: The Bill will also explore an efficient adjudicatory mechanism that is readily accessible, provides timely remedies, resolves cyber disputes and establishes a cyber jurisprudence for the future.
• Safe harbour provisions: The government is considering modifying the existing safe harbor rules for internet intermediaries with the proposed law.

What are Internet Intermediaries?

• Internet intermediary refers to a company that facilitates the use of the Internet. Such companies include internet service providers (ISPs), search engines and social media platforms.
• Examples of internet intermediaries in India include:
  • Social media platforms such as Facebook, Twitter, and WhatsApp
  • Search engines such as Google, Bing, and Yahoo
  • Content-sharing platforms such as YouTube, and Vimeo.
• These intermediaries are regulated by the Information Technology (Intermediary Guidelines and Digital

What is ‘Safe Harbour’

• About: Safe harbour – as prescribed under Section 79 of the IT Act, 2000 – is legal immunity that online intermediaries enjoy against content posted by users on their platforms.
  • This is available as long as these platforms abide by certain due diligence requirements, such as censoring content when asked by the government or courts.
• Origin: The concept originally came from Section 230 of the United States’ Communications Decency Act, which has been termed “one of the foundational laws behind the modern Internet”.
• The need: Tech experts believe that safe harbour is a crucial tenet for ensuring free speech on the Internet since platforms only must act on speech that is deemed illegal.
  • It is one of the main reasons behind the meteoric rise of Internet giants such as Facebook that have defined the Web 2.0 era where users can post content on the internet.
• Cyberbullying: Cyberbullying is the use of electronic communication to harass or harm someone, often repeatedly and intentionally.
• Doxxing: Doxxing is the act of publicly revealing or publishing a person’s private or identifying information online without their consent.

Why is there a need for reconsidering the safe harbour provisions for internet intermediaries

• Issues with the safe harbour provisions:
  • Intermediaries misusing safe harbour protections to evade responsibility for harmful content on their platforms.
  • The difficulty of applying a one-size-fits-all approach to the diverse range of intermediaries and services provided on the internet.
  • The challenge of balancing the need to protect free speech and expression with the need to prevent harm and illegal activity online.
• Changing Nature of Internet Intermediaries: The intermediaries have evolved into multiple types of participants on the internet that are functionally different from each other, requiring different types of guardrails and regulatory requirements.
• Complexity of Intermediaries: The increasing complexity of intermediaries over the last two decades has made it challenging to offer them a unified safe harbour provision.
• Global Reconsideration of Safe Harbour Norms: Countries around the world, including the US, are reconsidering their respective safe harbour norms, where the concept originated.

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