Digital India Act: We need an internet law that is balanced, proportionate and regulates effectively

Be it the EU’s Digital Services Act, the UK’s Online Safety Bill or the Australian Online Safety Act, one common theme across these laws is greater regulation to meet the prevalent challenges on the internet. While regulation is necessary, we must be careful to not over-regulate the internet, and ensure that it is proportionate and risk-based.

As India is embarking on the journey, we must work towards evolving a framework that hits the sweet spot of adequate regulation to tackle internet based harms, while preserving speech, user rights, innovation and business continuity. If we do it the right way, it could become a benchmark for other countries to follow.

And it must, as India’s global leadership, driven by its G-20 presidency, is set to inform the new world order. In this new order, the future of the internet must be characterised by making it a safer place for everyone, while keeping it open and innovation friendly.

Safe Harbour’s No Free Pass

Probably the most important regulatory aspect of the present day internet, safe harbour has been fundamental to keeping the internet open, allowing for new services to be deployed, thus ensuring the growth of the internet economy. It is often misunderstood that safe harbour gives a ‘free pass’ to intermediaries and ‘protects them’ from liability. It doesn't.

What it instead does is provide users, people like you and me, the freedom to post whatever we want to, by providing a safe landing stage for our thoughts to be expressed online. Imagine a scenario where intermediaries arbitrarily start taking down content against the fear of getting prosecuted. Or start over-censoring content to save themselves from liability.

Safe harbour ensures that intermediaries will not be held liable for user generated content unless and until they have actual knowledge from the court or the government about the illegality of such content. Which in turn protects users from unwarranted censorship. It is what allows countless websites to host user reviews. It allows users to share photos and videos on big social media platforms like Instagram and on the smallest blogs.

And enables users to share speech and opinions everywhere, from vast conversational forums like Discord, to the comment sections of the smallest newspapers and blogs. Any future law must ensure that safe harbour is respected and preserved, otherwise its dilution will impact user rights and innovation on the internet.

Tackling Rising Online Harms

The proposed law, which has been called Digital India Act, aims to institutionalise an accessible and transparent adjudicatory mechanism and efficient grievance redressal process. This will be important to provide efficient remedies for victims of rapidly rising online harms.

However, it is critical that these mechanisms undertake a risk-based approach and timelines for response are determined as per the degree of harm. Considering the deluge of grievances received by intermediaries, it is important that the complaints are graded according to the severity of harm to facilitate a fair application of mind to every complaint and its judicious resolution.

While a limited time-frame for acknowledging the grievances is reasonable to ensure accountability from the intermediaries, timeline for redressal should vary depending on the nature of the grievance.

Classify Intermediaries Carefully

The evolving nature of the internet and the emergence of different types of intermediaries has led to discussions around the need to classify platforms in different groups depending on their functions and accordingly delineate their roles and responsibilities.

While a graded regulatory approach is important, it is cardinal to deliberate on the feasibility of a straitjacketed classification, given the range of functions intermediaries perform.

The degree and range of online harms have amplified enormously with increased online interactions. These harms often vary in their nature and the kinds of threats posed. It is important to ensure that regulations consider all kinds of threats and the responsibility is delineated based on the level of risk in each case.

Moreover, the co-regulatory business models and the principles of self-regulation have been found to be a more sustainable model for maximising accountability without impinging upon innovation. The Reserve Bank of India, for instance, identifies greater self-sustained efforts by financial platforms as one of the criteria for reduced government control and hard regulations.

Harmonising Multiple Digital Laws

The new IT Act is being envisioned as an omnibus legislation that will tackle a wide catena of challenges on the internet. Here, it is important to note that many of the concerns are already being regulated or are proposed to be regulated by the sectoral regulators of the specific sectors.

For instance, the Indian government is also in the process of enacting the Digital Personal Data Protection Bill, 2022 for regulating all data related issues on the internet. Similarly, the Ministry of Corporate Affairs has recently constituted the Committee on Digital Competition Law with an aim to address competition law issues in digital markets. Accordingly, it is important that all these regulatory interventions are well coordinated and harmonised to avoid any implementational challenges.

The journey towards enhancing India’s digital prowess through a robust legislative framework has begun. However, there is a long way to go before this process of enacting the Digital India Act is successfully completed. While minor roadblocks and uncertainties are bound to arise given the range of issues in the digital space, it will be important that all concerns are addressed through the current open and multi stakeholder approach, which ensures that adequate opportunities are provided to all stakeholders and all concerns are addressed amicably.

Kazim Rizvi is the Founding Director of The Dialogue, a think-tank working in the intersection of tech, society and policy. Shruti Shreya is Programme Manager, The Dialogue, and leads the platform regulation vertical. Views are personal and do not represent the stand of this publication.