The government is reconsidering the safe harbour provision, because of which social media intermediaries are not liable for what third parties post on their website. Social media platforms get immunity from posts made by users.
The first Digital India Bill consultation was held in Bengaluru on Thursday with as many as 300 stakeholders participating. These stakeholders comprised lawyers, technology policy groups, technology companies and consumers among others.
Kazim Rizvi, founding director of The Dialogue, who participated in the consultation, told ET the safe harbour principle has been the key enabler of internet freedom and online free speech.
“Even though rising online harms necessitate greater accountability from platforms, it will be important that the Bill balances the requirement of greater responsibility with the need to preserve safe harbour and the open nature of the internet,” he said.
The law should align with the intermediary liability jurisprudence prescribed in the Shreya Singhal case, Rizvi said, adding that classification of intermediaries must not be done through a straight-jacketed approach, and should consider the evolving multi-functional approach of the internet, based on risks and harms.
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Online platforms that are pretending to be dumb intermediaries and allow cybercrime to proliferate will not be tolerated, Rajeev Chandrasekhar, minister of state for electronics and information technology, had said during his presentation on the proposed Digital India Bill on Thursday.The minister had also spoken about the need for separate rules for each class of intermediaries like e-commerce, digital media, search engines, gaming, AI, over-the-top platforms, telecom service providers, ad-tech, and significant social media intermediaries.
Arun Prabhu, partner & head-technology, media & telecom (TMT practice) at Cyril Amarchand Mangaldas, who was present at the consultation, told ET there are still a clear class of entities such as cloud service providers, infrastructure providers and similar providers who are clearly pure play intermediaries.
“Over regulating them can have a chilling effect. Further, where certain types of activities like filtering and sorting are automated, and follow basic principles like transparency and non-discrimination, they should be protected,” Prabhu said.
The Digital India Act will replace the 23-year-old Information Technology Act of 2000. It is expected to manage the complexities of the internet and rapid expansion of the types of intermediaries.
Ashish Aggarwal, vice president and head of public policy at Nasscom, who joined the consultation virtually, told ET a nuanced treatment of intermediaries is a positive.
For industry, the suggested focus on ease of doing business, and recognition that we need the law to enable the startup ecosystem to thrive are also some of the positives, he said.
“Sectoral regulators may understand risks but they may not fully understand the technologies,” Aggarwal said. Nasscom will be discussing various aspects of the proposed law with the industry and provide its inputs to the government.
Prateek Waghre, policy director, Internet Freedom Foundation, who also participated, told ET while the specifics of what will be in the Digital India Bill are awaited, the emphasis on it being ‘evolvable’ and ‘rule-based’ need to be watched with caution.
“If this translates to a scenario where the legislation and its scope are significantly modified through executive-issued rules, instead of a legislative process which inherently has more checks and balances, then the claim for its evolvability needs greater scrutiny,” he said.
The minister, during his presentation, proposed age-gating by regulating addictive tech and protecting minors’ data. He spoke about the need for safeguarding safety and privacy of children on social media platforms, gaming and betting apps. He proposed a mandatory do-not-track requirement to prevent children from becoming data subjects for ad targeting.
Venkatesh Krishnamoorthy, country manager, India, BSA, The Software Alliance, said his organisation highlighted the role of enterprise technology service providers who enable the operations of other companies with their services rather than having a direct relationship with an individual consumer.
“We recommended that the Digital India Act acknowledge this key distinction by ensuring that enterprise technology service providers are recognised in the Act and governed by appropriate obligations and not an overly broad, one-size-fits-all approach,” Krishnamoorthy said.
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