IS SAFE HARBOUR IMPORTANT FOR SOCIAL MEDIA?

THE CONTEXT:  The doctrine of safe harbour insulates an online intermediary (social‑media network, app store, cloud host, online marketplace) from criminal or civil liability for unlawful user‑generated content, provided the intermediary exercises “due diligence” and follows a statutory notice‑and‑takedown procedure. Without this shield, every post, meme or marketplace listing could expose the platform’s directors to arrest or ruinous damages, chilling India’s digital‑economy ambitions.

CONCEPTUAL & THEORETICAL FRAMEWORK:

EVOLUTION IN INDIA:

1. Information Technology Act (2000) — Section 79

• • • • Grants conditional immunity; forfeiture if the intermediary fails to remove content upon “actual knowledge”.
      • Shreya Singhal v. Union of India (2015) limited “actual knowledge” to a court order or an authorised government notice, curtailing arbitrary takedowns.

2. Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021

• • • • Expanded due‑diligence: resident Grievance Officer, Nodal Officer, 24‑hour receipt window, monthly compliance reports, traceability of the first originator on “significant social‑media intermediaries”.

3. 2023 Amendment & the PIB Fact‑Check Unit

• • • • Proposed loss of safe harbour for content tagged “fake/false/misleading” about Union government.
      • Bombay High Court (Kunal Kamra v. UoI, Sept 2024) struck it down as disproportionate and vague; the Supreme Court stayed the FCU meanwhile.

4. Deepfake & Generative‑AI Advisories (Nov 2023)

• • • • Platforms must take down deepfakes within 36 hours or forfeit immunity.

5. Proposed Digital India Act (DIA)

• • • • Government signals “safe‑harbour 2.0” — graded obligations, heavier duties for “must‑carry” content such as child‑sexual‑abuse material and terrorist propaganda. Draft still awaited.

CURRENT SCENARIO:

• • Takedown pressure: X (formerly Twitter) discloses 47,572 legal demands globally in 2024; India features among the top originators.
  • May 2025: Government orders X to block 8,000 accounts (many Pakistani handles) citing national‑security concerns, threatening fines and prison for local executives.
  • Legacy case‑law:
    • Avnish Bajaj (eBay India CEO arrest, 2004) exemplified personal risk before Section 79 defences matured.
    • Swami Ramdev v. Facebook (Delhi HC, 2019) ordered global takedown of defamatory videos, signalling extraterritorial reach.

THE ISSUES:/THE CHALLENGES:

• • Over-Blocking and the Chilling Effect on Free Speech: Multiple ministries—including the Ministry of Electronics and Information Technology (MeitY), Ministry of Information and Broadcasting (MIB), and law enforcement authorities—have issued takedown orders under Section 79(3)(b) of the Information Technology Act, 2000, often without the procedural safeguards associated with Section 69A, which mandates a review committee mechanism. Unfettered executive power to determine what constitutes fake news risks undermining democratic dissent, leading to an “administrative overbreadth” in digital governance.
  • Fragmented Enforcement and Institutional Overlap: This results in implementation deficit and violates the “One Government” principle necessary for seamless digital regulation. Cooperative federalism, as upheld in NCT of Delhi v. Union of India (2018), is eroded when digital regulation lacks coordination among central agencies and state law enforcement bodies.
  • Start-up Compliance Burden and Innovation Deficit: Mandating a resident grievance officer, a chief compliance officer, and periodic transparency reporting under the IT Rules (2021/2023) increases compliance costs, disproportionately affecting Indian digital start-ups and micro platforms. Reports by the Internet and Mobile Association of India (IAMAI) highlight that over 80% of domestic digital businesses face regulatory overheads that exceed their operational capacities.
  • Cross-Border Conflict of Laws and Digital Sovereignty: Takedown orders issued by Indian authorities have clashed with U.S.-based platforms citing First Amendment protections. India’s insistence on global takedown often prompts fears of reciprocal censorship abroad.

India’s upcoming Digital India Act must reconcile sovereignty with interoperability, ensuring that domestic laws are enforceable globally through data localisation mandates while upholding commitments to international comity.

• • Deepfakes and AI-Generated Harms: India currently lacks a statutory definition of “deepfake”, even as the European Union’s AI Act (2024) classifies deepfake-generation systems as high-risk AI applications requiring prior conformity assessments. The concept of Responsible Artificial Intelligence mandates risk-based regulation, human oversight, and explainability in AI interventions.
  • Constitutional Ambiguity in Jurisdictional Authority: Law and order, being a State List subject under Entry 1 of List II, creates tension when central agencies issue takedown orders with implications for communal harmony, electoral integrity, or regional sentiments.
  • Absence of a National Strategy on Platform Governance: Unlike cybersecurity (National Cyber Security Policy, 2013) or data protection (Digital Personal Data Protection Act, 2023), India lacks a national doctrine on platform governance. This leads to ad hocism and executive overreach, which undermines constitutional rights and policy stability.

Justice B.N. Srikrishna (Chair, Data Protection Committee) recommended federated digital regulation to ensure federal balance while addressing cross-jurisdictional cyberthreats.

GLOBAL COMPARATIVE LESSONS:

THE WAY FORWARD:

• • Graduated “Safe Harbour 2.0” Framework: India should tier compliance duties by monthly active users and systemic risk, mirroring the European Union Digital Services Act, where very large online platforms with over forty-five million users face the heaviest obligations. This preserves the innovation dividend for smaller firms while ensuring that “attention utilities” such as Instagram and WhatsApp internalise the social cost of virality. Statutory caps on penalties (for example, up to six per cent of global turnover as in the European Union) would deter negligence without inviting regulatory over‑reach.
  • Statutory Due‑Process & User‑Rights Charter: Parliament should codify an inviolate sequence—prior notice, reasoned order, user appeal and time‑bound judicial review—for every takedown or blocking directive, thus embedding the proportionality test read into Section 79 by the Supreme Court in Shreya Singhal v. Union of India (2015). A model schedule could mandate twenty-four-hour emergency compliance with an ex post ratification by a judge within seventy-two hours, balancing security with civil liberties.
  • Independent Digital Services Council: An autonomous tri‑partite regulator—retired judge, technologist, and civil‑society nominee—should vet all “urgent” blocking requests within a day, echoing the Bombay High Court’s censure of unilateral fact-checking powers in Kunal Kamra v. Union of India (2024). The Council can publish quarterly transparency digests, creating sunlight deterrence against regulatory capture. Its adjudicatory wing would also hear appeals from users and platforms, unclogging constitutional courts and fostering speedy dispute resolution.
  • Algorithmic‑Transparency Sandbox: The Ministry of Electronics and Information Technology (MeitY) should launch a sandbox, backed by the National Strategy for Artificial Intelligence, to test privacy-preserving audit protocols for ranking, targeting, and recommender systems. In exchange for safe‑harbour retention, large platforms could disclose systemic risks (echo chambers, virality loops) to an accredited research pool under nondisclosure safeguards. Annual white papers, on the lines of the European Union’s risk‑assessment templates, would feed evidence-based policymaking without revealing proprietary code.
  • Deepfake Detection Fund and Watermarking Standards: Building on MeitY’s 2023 advisory that mandates the deletion of deepfakes within thirty-six hours, the Union Government should establish a public-private research fund and task the Bureau of Indian Standards with developing interoperable watermarking norms. Election-year experience—fake videos of leaders during the 2024 Lok Sabha campaign, which fueled over 200 million shares in forty-eight hours—shows the need for scalable detection pipelines. Grants could prioritise Indian‑language models and forensic benchmarks, reducing import dependence and supporting start-ups working on authenticity infrastructure.
  • Start‑up Safe‑Pass & Harmonisation with the Digital Personal Data Protection Act 2023: Platforms under two million users should enjoy staggered compliance timelines and a single‑window “Regulatory Concierge”, addressing the high fixed costs of appointing resident grievance, nodal, and compliance officers flagged by industry surveys. Simultaneously, the Ministry of Electronics and Information Technology must issue joint rules clarifying that a “data fiduciary” breach under the Digital Personal Data Protection Act does not automatically extinguish safe harbour, thereby avoiding dual penalties.

THE CONCLUSION:

Safe harbour remains the constitutional guard‑rail that reconciles Article 19(1)(a) freedom of speech with the State’s legitimate aim of preventing online harms. A calibrated reform — neither blanket immunity nor draconian vicarious liability — will advance Digital India as an open, safe and innovative cyberspace.

UPSC PAST YEAR QUESTION:

Q. Discuss Section 66A of IT Act, with reference to its alleged violation of Article 19 of the Constitution. 2013

MAINS PRACTICE QUESTION:

Q. Critically analyse whether India should adopt a risk‑tiered intermediary liability regime. Suggest safeguards to preserve fundamental rights while addressing emerging threats such as deepfakes and cross‑border disinformation.

SOURCE:

https://epaper.thehindu.com/reader