Centre to reconsider ‘safe harbor’ clause in IT law

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• Recently, the Union government formally outlined the Digital India Act, 2023. 

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• Remodelling of the IT Act:
  • The Digital India Act, 2023 is a broad overhaul of the Information Technology Act, 2000.
• Covering new and complex issues:
  • The Digital India Act would cover provisions such as Artificial Intelligence (AI), deepfakes, cybercrime, competition issues among internet platforms, and data protection.
  • The new law would seek to address “new complex forms of user harms” that have emerged in the years since the IT Act’s enactment, such as catfishing, doxxing, trolling, and phishing.
• Reconsideration of the ‘safe harbour’ provision:
  • The government is reconsidering a key aspect of cyberspace ‘safe harbour’, which is the principle that ‘intermediaries’ on the internet are not responsible for what third parties post on their website. 
    • This is the principle that allows social media platforms to avoid liability for posts made by users. 
  • Safe harbour has been reined in recent years by regulations like the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which require platforms to take down posts when ordered to do so by the government, or when required by law.
  • Changes in the new Act:
    • Platforms for which safe harbour was applied as a concept “have now morphed into multiple types of participants and platforms on the internet, functionally very different from each other, and requiring different types of guardrails and regulatory requirements.”
    • Social media platforms’ own moderation policies may now take a backseat to constitutional protections for freedom of expression.
• Subsumption of other digital legislations:
  • Amendment to the IT Rules, 2021 says that platforms must respect users’ free speech rights. Three Grievance Appellate Committees have been established to take up content complaints by social media users. 
  • A slew of such digital legislation is now likely to be subsumed into the Digital India Act.
• Additional mechanisms:
  • The government put out a draft Digital Personal Data Protection Bill in 2022, which would be one of the four prongs of the Digital India Act, with the National Data Governance Policy and amendments to the Indian Penal Code being others, along with rules formulated under the Digital India Act.
  • A new “adjudicatory mechanism” for criminal and civil offences committed online would come into place.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

• Digital Media:
  • It covers digitised content that can be transmitted over the internet or computer networks.
  • It includes intermediaries such as Twitter, Facebook, YouTube.
  • It includes publishers of news and current affairs content and also curators of such content.
    • Publishers of news and current affairs content covers online papers, news portals, news agencies and news aggregators.
  • However, e-papers are not covered because print media comes under the purview of the Press Council of India.
    • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
  • It also excludes news operations not qualifying as a “systematic business activity” like blogs and non-profit publishers.
• Equal Treatment to Traditional Media:
  • Digital media is brought under the ambit of Section 69(A) of the Information Technology Act, 2000 which gives takedown powers to the government.
    • The section allows the Centre to block public access to an intermediary “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above”.
  • It also deprives the intermediaries of their “safe harbour protections” under Section 79 of the IT Act, 2000.
    • Safe Harbour provisions protect the intermediaries from liability for the acts of third parties who use their infrastructure for their own purposes.
    • For example, e-commerce platforms should not be held liable if people sell spurious goods and social media platforms should not be held liable if people post defamatory content.
• Three Tier Check Structure:
  • Part III of the rules imposes three-tier complaints and adjudication structure on publishers.
    • Level I: Self-regulation.
    • Level II: Industry regulatory body headed by a former judge of the Supreme Court (SC) and High Court (HC) with additional members from a panel approved by the Ministry of Information and Broadcasting.
    • Level III: Oversight mechanism that includes an inter ministerial committee with the authority to block access to content, which can also take suo moto cognisance of an issue and any grievance flagged by the Ministry.
• Content Moderation Officers: 
  • Social media companies are needed to appoint officers who will be responsible for complying with content moderation orders.
• Originator of Message: 
  • The rules make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
• Grievance Redressal Portal: 
  • The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances.
  • Intermediaries are required to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.
• Information Disclosure to Competent Authorities: 
  • The rules also hold that competent authorities, through an order, may demand pertinent information for the purposes of prevention, detection, investigation, prosecution or punishment of crimes.
  • However, it excludes the intermediary from having to disclose the content of the personal messages.

Source: TH