The proposed Digital India Act, 2023, raises concerns about the safe harbour protections for intermediaries, including digital news media and social media platforms. The government has been working towards increasing the compliance burden on Internet intermediaries, in particular in the IT Rules 2021 and its later amendments. These Rules have put the onus on social media intermediaries to arbitrate on content on their platforms with regulations that were weighted in favour of the government of the day, and had invited legal appeals as digital news media platforms among others questioned the constitutionality of the Rules.
The government's proposal to revisit the need for safe harbour provisions for intermediaries is worrying. Safe harbour provisions, in particular Section 230 of the U.S. Communications Decency Act, 1996, have been instrumental in catalysing the Net's development. They have provided immunity to online services with respect to user-generated content, thereby allowing the Internet to flourish as a platform for free expression and innovation.
While it is important to regulate hate speech and disinformation on the Internet, intermediaries should not be burdened with onerous and punitive requirements that violate the principle of safe harbour. The IT Rules' specifications on giving users prior notice before removing content or disabling access, and for intermediaries to come up with periodic compliance reports are reasonable. However, care should be taken to ensure that these requirements do not become needlessly burdensome.
The government's focus on regulating or taking down critical opinion or dissent in social media/news platforms, rather than hate speech or disinformation, raises concerns about the government's intentions. The proposed amendment on the take down of social media/news content that has been marked as "fake" or "false" by the Press Information Bureau or any other government agency is worrying, as it gives the government excessive power to censor content.
In conclusion, while modern regulations to tackle issues related to misinformation, problematic content, and the side effects of the new form of the Internet are a must, they should still retain the first principles of safe harbour without whittling down their core. The government must strike a balance between regulation and the principle of safe harbour to ensure that intermediaries are not burdened with excessive regulation and censorship, and the Internet can continue to thrive as a platform for free expression and innovation.
