Digital India Bill: Govt may remove safe harbour for internet platforms in upcoming law

Union Minister Rajeev Chandrasekhar.

India is mulling the removal of the safe harbour provision for internet intermediaries in the upcoming Digital India Bill for tech platforms, according to a presentation on March 9 by Rajeev Chandrasekhar, the union minister of state for Electronics and IT.

The safe harbour provision gives internet platforms legal immunity against content shared by users on the platforms and was allowed by the IT Act, which the forthcoming Digital India Act seeks to replace.

"The whole logic of safe harbour was that internet platforms have absolutely no power or control over the content that some other consumer creates. On my platform. But in this day and age, is that really necessary? Is that safe harbour required?," said Rajeev Chandrasekhar.

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Chandrasekhar was speaking at the public consultation meeting held on March 9, on the basic guiding principles and architecture of the upcoming Digital India Bill – the proposed successor to the Information Technology Act, 2000.

Online platforms that are pretending to be silent intermediaries and allow cybercrime to proliferate will not be tolerated and will be addressed by the proposed Digital India Act, said Chandrasekhar.

"The law should not be prescriptive. The law should be principles-based rule providing a framework with very sound principles that can then be used to develop rules in the future," He added.

"Our government respects anonymity from a privacy perspective but anonymity combined with platforms pretending to be dumb intermediaries leads to a situation where in the case of illegality and crime the cyberspace then morphs into a place where essentially illegalities cannot be deterred or prosecuted... So that is the current situation and that is certainly not a situation that we intend to live under unaddressed or unresolved or as a status quo," He said.

India's existing IT Act is 22 years old and was provisioned for the nascent IT ecosystem in 2000 pre-digital India in the absence of modern internet-based services such as e-commerce, and social media platforms, said the presentation during the meeting.

"The new law should evolve through rules that can be updated and address the tenets of Digital India which are open internet, online safety and trust, accountability, adjudicatory mechanism, and new technologies," Minister Chandrasekhar said.

The minister also said that there are works going on to define the kinds of content that are a no-go on the internet.

"But this will raise questions of who should get safe harbour and whether the government should be playing the arbitrator role between intermediaries and those who are aggrieved by content," the minister said adding that listeners and other interested parties can share emails and suggestions on the same.

The framework of the Digital India laws will include Digital Personal Data Protection Act, National Data Governance Policy, IPC Amendments for cyber crimes and DIA rules.

Sharing data on rising harmful content on the internet, Chandrasekhar said that over 58.2 lakh Youtube videos were removed to date, out of which 30 percent are from India.

"Around 327 crore content were acted upon on the Meta (Previously Facebook) for spam, fake accounts, adult nudity, and sexual activity, while 97.2 lakh Indian WhatsApp accounts were banned," He said.

The IT minister also pointed out that the issue with the way of using Al and creating deep fakes is deeply harmful.

"At least three loan apps that we recently shut down, their way of making sure that the borrower returned the money was for the app to gain access to the photos and create pornographic content where the face of the person was brought onto the porn and then broadcast to the phonebook," the minister said.

Chandrasekhar said that the Ministry is very particular about addressing user harm online and online safety is a must.

"Digital user rights including the Right to be Forgotten, Right to secured electronic means, right to redressal, right to digital inheritance, right against discrimination, and right against automated decision making will be included as part of online safety and trust," the presentation said.

Discretionary moderation of fake news by social media platforms should be critically examined and regulated under the constitutional rights of freedom of speech and expression, it added.

As a way forward and what to be expected going ahead, the minister said that as a first step, a comparative study of all relevant global laws pertaining to the internet and technology in other countries will be held.

"Next comes the draft bill, consultations with experts, the general public, industry, media, academia, student community, internet governance forums, and consumer forums will be held, a draft cabinet note and policy will be created and comes to the Digital India Act (DIA)," he said.