Laying the Foundation for a Future-Ready Digital India

Table of Contents

Context: The article is discussing the proposed “Digital India Bill” and the efforts by the Ministry of Electronics and IT to replace the existing Information Technology (IT) Act, which is 23 years old. The purpose of this new legislation is to address various challenges that have emerged in the digital space, including user harm, competition, and misinformation. The first draft of the bill is expected to be released soon and it aims to upgrade the current legal framework and redefine how technology is regulated, not only within India but also on a global scale. The article highlights a significant change being proposed which is the categorization of digital intermediaries into distinct classes, such as e-commerce players, social media companies, and search engines with different responsibilities and liabilities assigned to them. Overall, the article highlights the bill’s potential to bring about significant changes in technology regulation, addressing the evolving digital landscape and its associated challenges.

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 Media Ethics Code) Rules, 2021.

Background

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.
  - 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.
- 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 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 have to 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.

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.

Decoding the Editorial

The article highlights the shortcomings of the current legal regime under the Information Technology (IT) Act in India and explains why it is considered untenable.

Broad Definition of Intermediaries: The IT Act defines intermediaries broadly, encompassing a wide range of entities between users and the Internet. The sub-classification of intermediaries into categories such as Social Media Intermediaries (SMIs), Significant Social Media Intermediaries (SSMIs), and Online Gaming Intermediaries is also present. However, the definition of SMIs is so broad that it includes various services like video communications, matrimonial websites, email platforms, and online comment sections.
Stringent Obligations for Intermediaries: The current rules impose strict obligations on most intermediaries, including a 72-hour timeline for responding to law enforcement requests and resolving content takedown requests. However, these obligations are applied uniformly to different types of intermediaries, such as ISPs, websites, e-commerce platforms, and cloud services.
Lack of Differentiation: The current regime fails to differentiate between different types of intermediaries based on their user base, risk of harm, or closed nature. This means that even platforms with closed user bases and lower risk, such as licensed platforms like Microsoft Teams or customer management solutions like Zoho, are treated the same as conventional social media platforms. This not only increases their cost of doing business but also exposes them to greater liability without significantly reducing internet risks.
International Examples of Proportionate Regulation: Only a few countries have taken a clear position on proportionate regulation of intermediaries. The European Union’s Digital Services Act has a developed framework that introduces exemptions and creates tiers of intermediaries with increasing legal obligations. Australia also has a classification system and industry-drafted codes governing different categories of intermediaries, with requirements for risk assessments.

Way Forward

Necessary Areas of Attention for India:

The necessary areas of attention for India in developing a regulatory framework for intermediaries in the digital space include:

Classification Framework: Rather than a highly specific and product-centric classification, there is a need for a flexible classification framework that allows for future technological advancements. The framework should involve a few defined categories and require intermediaries to conduct risk assessments, which would determine their placement in relevant categories. The aim is to minimise obligations on intermediaries and ensure that regulatory requirements are proportionate to their ability and size.
Exemptions and Differentiation:
- Exempting micro and small enterprises, as well as caching and conduit services (infrastructure providers), from major obligations is required.
- Distinguishing communication services (where end-users interact) from other types of intermediaries like search engines and online marketplaces must be done.
- Non-communication service intermediaries could have lesser obligations but still be required to appoint a grievance officer, cooperate with law enforcement, identify advertising, and take down problematic content within reasonable timelines.
Risk Assessments and Special Obligations: Communication service providers would be asked to conduct risk assessments based on active user numbers, risk of harm, and potential for harmful content to go viral. The largest communication service platforms, such as Twitter, could be subject to additional obligations like appointing India-based officers and setting up in-house grievance appellate mechanisms with independent external stakeholders to enhance confidence in the grievance resolution process. Alternative approaches like content circuit breakers could also be considered to mitigate the rapid spread of harmful content.
Metrics and Review: To ensure effectiveness, there is the need to define metrics for risk assessment and appropriate thresholds. These metrics should be periodically reviewed in consultation with the industry to keep pace with evolving technology and changing circumstances.