A parliamentary panel deliberating on the Personal Data Protection Act has recommended that social media companies should be regulated like an editor rather than an intermediary – effectively suggesting an end to the legal immunity they face on their platform enjoy third party hosted content as people know the matter said.
Intermediaries, such as social media companies, operate according to what is known as the “Safe Harbor”, which essentially means that they cannot be held liable for content that users post on their platform as long as the companies follow certain due diligence instructions, such as inquiries as prescribed in Section 69A of India’s Information Technology Act.
Publishers such as newspapers and news sites, on the other hand, are responsible for the content they publish, as it is not third-party contributions or unchecked user content. The idea is that they have direct control over what is printed or published on their platform and therefore not have or need safe haven protection for content. This is the fundamental difference between an intermediary and a publisher.
It is worth noting that Safe Harbor is an accepted norm in the democratic world and is a critical piece of legislation that, while protecting platforms from unwanted legal action, also ensures that users are free to express themselves on those platforms. It is seen as an essential principle of the right to freedom of expression, and by providing universal operating conditions, it enables these platforms to grow to the gigantic proportions that they are.
This also explains why most of the dominant platforms such as Facebook, Twitter or Instagram have decided to stay out of China, which refuses such blanket protection or operation.
The 2019 Personal Data Protection Bill was referred to a Joint Parliamentary Committee (JPC) in 2019, which was tasked with producing a report on its recommendations on the various provisions of the Bill. A draft version of the report has been created, Trickypedia have learned.
“In this draft report, the committee recommended that a mechanism be put in place to hold social media platforms responsible for ‘unverified content’ on their platforms,” said one person who is directly familiar with the content of the report Trickypedia on condition of anonymity as the report is currently confidential.
“As soon as the verification request has been submitted with the necessary documents, the social media intermediaries must verify the account and be held accountable for the dissemination of content through unverified accounts,” says the draft report that was read out Trickypedia Conditions.
However, it is not clear why a body dealing with a data protection law makes recommendations on regulating social media intermediaries.
While lifting the Safe Harbor condition seems almost impossible given the sheer volume of content on major social media platforms, the only other alternative suggested so far as a sideline to check every single user has also been ignored sheer KYC spiral to which most of these platforms could be transferred.
The abolition of Safe Harbor protection would make it impossible for platforms like Facebook and Twitter to function in the country without changing the nature of those platforms. Facebook declined to comment on our requests, and Twitter did not respond to an immediate request for comment.
While this is still a recommendation by the GPA in a draft report, it represents a clear departure from the general safe harbor norms that are accepted worldwide, including in India.
The 2015 Shreya Singhal ruling, seen as a landmark ruling by the Supreme Court for Freedom of Expression, clearly stated that online intermediaries such as social media platforms are only required to remove content if they have ordered an Court or government agency.
However, several recent events have caused governments around the world to rethink the safe haven. The recent revelations by Facebook whistleblowers about how the platform’s algorithms allegedly allow hate speech to flourish with little to no corporate impact have rekindled the debate about whether to restrict the safe haven to some extent and hold businesses more accountable should.
However, this is a difficult balancing act. As governments put pressure on social media companies to regulate language, this in turn increases the propensity of platforms to crack down on legitimate free expression, often stifling important and critical voices in the process.