Context: The Union Ministry of Information and Broadcasting is reconsidering the concept of safe harbour for social media platforms to combat the issue of “fake news” online.
Relevance of the topic:
Prelims: Concept of Safe Harbour clause.
Mains: Issues related to protecting freedom of speech in digital media.
What is Safe Harbour?
- Safe harbour is a legal concept that protects individual websites that allow third party users to share content from legal liability for any unlawful posts. The safe harbour protects the sites from any criminal action for third party content hosted by them.
- The Section 79 of the Information Technology Act, 2000 grants intermediaries safe harbour in India. However, the protections are given with some conditions.
- If an intermediary receives “actual knowledge” of illegal content on their website, and they do not take the content down within a certain time period, they would lose the liability protections under Section 79.
- As per the Supreme Court of India, the “actual knowledge” means a court order or government notification.
Significance of Safe Harbour clause:
- It aims to encourage innovation online and prevent website owners from being unfairly hounded for content they had no hand in publishing.
- Without safe harbour protections, online intermediaries could face tremendous consequences for illegal content. E.g., In 2004, the then head of the website eBay in India was arrested because of a user listing of a disk containing child sex abuse material for sale.
How are intermediary liability protections regulated in India?
- While safe harbour does have the conditions described above, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 puts in place additional conditions for platforms to retain protection from intermediary liability. These include:
- Social media firms need to have a nodal officer, a grievance officer resident in India.
- The firms need to periodically submit reports of complaints they receive on content, and action taken against them for this.
- Different parts of the IT Rules have been challenged in courts in the last few years.
- E.g., the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 contained provisions that would strip safe harbour from sites for content that has been notified as “fake news” by the Press Information Bureau’s Fact Check Unit.
- That amendment was immediately challenged in the Bombay High Court. Petitioners accused the government of exceeding its authority by designating a Fact Check Unit that could be an arbiter of truth, and putting pressure on social media companies to take content down without following the longer process of sending a notice to users whose content is being removed.
- In 2024, the Bombay High Court struck down the amended Information Technology (IT) Rules, by calling the amendment “unconstitutional”.
Also Read: Bombay HC strikes down Centre’s Fact Check Unit
Why is the government considering amending the Safe Harbour clause?
- The government has accused foreign social media platforms (E.g., X) of flouting Indian laws and acting too slowly on takedown notices. Hence, the government aims to amend safe harbour in order to make platforms more proactive in governing their sites, not just for misinformation, but also for AI-generated deepfakes, cyberfrauds etc.
- The Ministry of Electronics and Information Technology is in the process of drafting a Digital India Act (DIA) that would incorporate these changes. However, the outlines of how safe harbour would change under this proposed law have not yet been revealed.