The Digital India Act that will replace the IT Act 2000 seeks to regulate Internet intermediaries. Under the Digital India Bill, the contours of safe harbour provided to social media companies will be redefined, making them liable for user-generated content. Simply put, the concept of anonymity and non-traceability of users as it exists now will cease once the said bill is enacted. For technology companies, it means that they may not be able to perform without political pressures and support free speech.
It is clear that the government can crack down on unpalatable content if the Bill becomes an Act. It will allow law enforcement agencies to identify and track down the source of content. However, the ministry of electronics and information technology (Meity) insists that it will consult similar laws in other countries that define the liabilities of online intermediaries regarding the content they host. It says only best practices in this direction may be adapted wherever required.
IT Act to Digital India Act
The Section 79 of the IT Act says that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by it. This provides immunity for online platforms from legal action against them for illegal content shared on them.
The thinking within the government is that the existing law has limitations — There is a lack of comprehensive provisions on user rights, trust and safety; limited recognition of new forms of cybercrimes; lack of regulatory approaches for harmful and illegal content; and lack of adequate principles for data/privacy protection. Union minister of state for information and technology Rajeev Chandrasekhar had earlier said that new legislation must be future proof and should evolve through rules that can be updated, and address the tenets of Digital India.
It is not like industry veterans are against the Digital India Act. If enacted well and with goodwill, the Act can update the existing law in line with advances in technology since the IT Act came into being. During the Tata Consultancy Services (TCS) AGM last year, Tata Group Chairman N Chandrasekaran acknowledged the necessity of the Act, saying that so much has changed over the last couple of decades since the original It Act was put in place.
While Internet and information technology have empowered citizens, they have also created challenges in the form of user harm. They pose a threat to security, and safety women and children. This has also given rise to organised information wars, radicalisation and circulation of hate speech, misinformation and fake news and unfair trade practices. While on paper it appears that the government is concerned about the wellbeing of citizens while formulating such rules, the bone of contention remains what should be defined as unlawful or wrong and who gets to decide that.
If someone feels that the government is itself to blame for raising suspicions regarding everything it chooses to pursue, he/she cannot be blamed. The changes proposed to any Act must be seen in the light of broader actions that the government is undertaking whether it be in the form of NCERT overhaul or rising intolerance in the society. To avoid such distrust from the public sphere, the government must consult stakeholders before getting into the business of law-making.
The ministry last month held the first round of consultations with industry stakeholders, policy advocates, and legal experts on the broad principles of the Digital India Act. The ministry stressed that platforms cannot be allowed to become mere dumb spectators at a time anonymity has led to a situation of crime, illegality, and user harm. The government has also raised the question as to who all deserve safe harbour. In several instances, the government has already revoked safe harbour status of social media companies for failure in complying with government orders.
India is not the only country looking to overhaul legal provisions in the light of technological advances. In fact, more and more governments are taking a stricter stance on intermediary liability laws. The recently passed Digital Services Act of the European Union seeks to articulate clear responsibilities for online platforms and imposes new mechanisms such as allowing users to flag illegal content online, and for platforms to cooperate with specialised trusted flaggers to identify and remove illegal content. Indian government has also done something similar and it has floated a proposal to assign PIB as fact-checker for any social media post regarding the government.