A Parliamentary panel deliberating on the personal data protection bill has recommended that social media companies need to be regulated like a publisher and not an intermediary — effectively proposing an end to the legal immunity they enjoy over third party content hosted on their platform, people aware of the matter said.
Intermediaries, like social media companies, operate under what is called ‘safe harbour’, which essentially means that they cannot be held liable for content users post on their platform as long as the companies follow certain due diligence directions such as adhering to government content takedown requests, as prescribed under Section 69A of India’s Information Technology Act.
Publishers, like newspapers and news sites, on the other hand, are responsible for the content they publish since it does not involve external contributions or user content without checks. The idea is that they have a direct control over what gets printed or published on their platform, and therefore don’t have or need safe harbour protection for content. This is the fundamental difference between an intermediary and publisher.
It is worth mentioning that safe harbour is an accepted norm across the democratic world and is a crucial piece of legislation which while saving platforms from undesirable legal action, also ensures that users can express themselves freely on these platforms. It is considered a crucial tenet to the right to free speech, besides enabling these platforms to grow to the giant scale that they have, by providing a universal operating condition.
That also explains why most of the dominant platforms like Facebook, Twitter or Instagram have chosen to stay out of China, which refuses to allow such blanket protection or operations.
The draft Personal Data Protection Bill, 2019 was referred to a Joint Parliamentary Committee (JPC) in 2019 which was tasked to come up with a report on its recommendations on the various provisions in the bill. A draft version of the report has been drafted, Entrackr has learnt.
“In this draft report, the committee has recommended creating a mechanism to hold social media platforms responsible for ‘unverified content’ on their platforms,” a person with direct knowledge of the report’s contents told Entrackr on condition of anonymity since the report is currently confidential.
“Once application for verification is submitted with necessary documents, the social media intermediaries must mandatorily verify the account and they must be held accountable for the content dissemination by unverified accounts,” the draft report which was read out to Entrackr states.
However, it is not clear why a panel dealing with a data protection bill is making recommendations on regulating social media intermediaries.
While removing the safe harbour condition seems almost impossible to execute considering the sheer volume of content involved in large social media platforms, the only other alternative that has been proposed in passing till date, to verify each individual user, has also been ignored thus far for the sheer KYC spiral it could send most of these platforms on.
Removing safe harbour protection would make it impossible for platforms like Facebook and Twitter to function in the country, without changing the very nature of these platforms. Facebook declined to comment on our queries, Twitter did not respond to an immediate request for comment.
While this is still a recommendation made by the JPC in a draft report, it marks a significant shift from general safe harbour norms accepted around the world, including in India.
The 2015 Shreya Singhal judgement, considered to be a landmark judgement by the Supreme Court for free speech, had clearly established that online intermediaries, like social media platforms, are only obligated to take down content on receiving an order from a court or government authority.
However, several recent events have led governments across the world to rethink safe harbour. The recent revelations by Facebook whistleblowers about how the platform’s algorithms allegedly let hate speech thrive with little to no consequences for the company have reignited the debate on whether safe harbour should be curtailed to some extent and companies be held more accountable.
That, however, is a difficult balancing act. As governments put pressure on social media companies to regulate speech, it, in turn, increases platforms’ propensity to come down hard on legitimate free speech, often stifling important and critical voices in the process.