Why safe harbour if you play by the rule?

Imagine for a moment that you have received a notice under Section 133 of the Motor Vehicle Act, 1988, alerting you that the driver of your vehicle has committed an offence by violating the stop line on a specific date and time, at a particular location. As you scrutinise the details, you discover that your cousin, who had borrowed your car, is the one at fault. Now, what do you do?

You could confront your cousin and insist that they pay the compounding amount. Alternatively, you could pay the fine yourself. Either way, since the authorities have brought to your attention that an offence has been committed by the person behind the wheel of the vehicle registered under your name, it is your responsibility to deal with it.

The same is true for any digital intermediary, including social media and e-commerce platforms, telecom and web-hosting service providers, and search engines. These intermediaries often try to hide behind the ‘safe harbour’ provision under Section 79 of the Information Technology Act, 2000, which absolves them of the liability for any third-party content or user posts.

Similar to the vehicle owner who may not be at fault but is accountable for the car, digital intermediaries are also responsible for what occurs on their platforms. And just like the vehicle owner, the intermediary has conditional immunity, which is valid only if it acts to rectify and, if necessary, remove the content from the platform upon receiving a notification from the appropriate government official or agency.

To bolster the regulatory mechanism, the Government of India under the Information Technology Rules of 2021 and subsequent amendments, mandated additional due diligence by appointing India-based employees to liaise with the government and address users’ queries. It also formed three government-appointed appellate committees to adjudicate unresolved user grievances.

However, these measures are insufficient to cope with the disruption of the new digital era. Union IT Minister Rajeev Chandrasekhar is spot on when he asserts that the platforms for which the safe harbour concept was applied back in the 2000s have now evolved into several types of participants and platforms that are functionally very distinct from one another and necessitate different types of guardrails and regulatory requirements.

In discussing the upcoming Digital India Bill, the Minister emphasised the need to review the ‘safe harbour’ concept because intermediaries have become more complex over the years, making it essential to classify them based on their function and form pertinent regulations for each of them. The proposed bill also seeks to regulate the ‘weaponisation of misinformation’ under the guise of free speech and other cybercrimes like cyberbullying, doxxing, and identity theft.

It is imperative to recognise that intermediaries, like the owners of the vehicles, have an unequivocal responsibility to ensure that their platforms are not utilised to spread misinformation, hate, or other forms of illegal content. The Indian Government’s efforts to implement stricter regulations and guidelines must be welcomed, and we should all do our part in ensuring that our digital ecosystem remains safe and secure.

shubhendup@cybermedia.co.in