India’s overhaul of Internet laws
Source: By Soumyarendra Barik: The Indian Express
India’s tech regulations are at an inflection point as the country plans to overhaul rules governing the Internet economy. A data protection Bill is nearing its finalisation and a draft law is being reworked to set a framework for the telecommunications sector. But perhaps the most important law currently in the pipeline is the Digital India Bill, which will be the successor to the decades-old Information Technology Act, 2000, the country’s core Internet law.
Rajeev Chandrasekhar, Minister of State for Electronics and IT, who is a key figure behind the formulation of the IT Act’s successor, has said that the Digital India Bill will “harmonise” all the other tech laws being worked upon. Naturally, a lot is riding on the Digital India Bill as India looks to achieve its digital economy target of $1 trillion, or 20 percent of the GDP, over time.
A first draft of the Digital India Bill is expected in the first week of June, and given the impact that the legislation could have on a number of stakeholders – Internet businesses, users and the government itself – Chandrasekhar has carried out two rounds of pre-draft public consultations to invite people’s comments on what the Bill should include.
First, what is the new law for the Internet?
Currently, the Information Technology Act, 2000 is the core framework that regulates entities on the Internet. However, the law needs an update since it was framed for an Internet era that looked very different from the Internet of today. The government has also on occasion found it difficult to promulgate rules since the parent Act is limited in its scope.
Chandrasekhar said the core objectives of the new Digital India Bill are to ensure an open and safe Internet in the country to safeguard users’ rights and reduce risks for them online; and accelerate the growth of technology innovation.
What do we know about the Bill so far?
Revisiting safe harbour: Safe harbour – as prescribed under Section 79 of the IT Act, 2000 – is legal immunity that online intermediaries like social media platforms enjoy against content posted by users on their platforms. It is perhaps the most important regulatory freedom afforded to online platforms that has allowed platforms like Facebook, Twitter, Instagram, YouTube and WhatsApp to flourish in India.
However, Chandrasekhar has argued if safe harbour should exist at all. In the 2000s, intermediaries equalled safe harbour, but today they have morphed into multiple types of participants on the Internet that are functionally very different from each other and require different types of guardrails and regulatory requirements. Indeed, a question – how many of them should be entitled to safe harbour,” he had said during a consultation earlier.
“There is a greater diversity and complexity about the platforms that are on the Internet today and therefore, there is this legitimate question – should there be a safe harbour at all?”
The concept of safe harbour originally came from Section 230 of the United States’ Communications Decency Act, which has been termed “one of the foundational laws behind the modern Internet”. It is one of the main reasons behind the meteoric rise of Internet giants such as Facebook that have defined the Web 2.0 era where users can post content on the Internet. Tech experts believe that safe harbour is a crucial tenet for ensuring free speech on the Internet since platforms only have to act on speech that is deemed illegal.
Classification of intermediaries: So far, India’s Internet laws do not classify platforms based on their nature. The only distinction has been made with respect to platforms’ size – a platform with more than 5 million Indian users has been called a “significant” social media intermediary and has added obligations. However, there is no specific provision in the rules that creates a distinction between a social media company and e-commerce company for instance.
The Digital India Bill is likely to address that, The Indian Express had earlier reported.
The Centre is considering regulating a wide gamut of online platforms including social media sites, e-commerce entities, fact-checking portals and artificial intelligence (AI)-based platforms like ChatGPT under the Bill. This classification also interplays with the concept of safe harbour that the government wants to upend.
The government is understood to be considering a departure from the long-held understanding of ‘intermediaries’ on the Internet – sites that typically act as a platform for users to access services on the Internet and have no control over the content on their platform, which affords them safe harbour.
However, by including entities like fact-checking portals as intermediaries, which are so far understood to be ‘publishers’, the government is changing the definition of what an intermediary is.
User harms: A perusal of the public statements that Chandrasekhar has made gives the impression that the Digital India Bill will have a big focus on user harms that are unique to the online space. A long-held complaint has been that offences on the Internet are largely borrowed from offences in the offline world prescribed under rules like the Indian Penal Code (IPC).
But the government believes that with the evolution of the Internet, the digital space is rife with online-specific harms and offences. For instance, online misinformation is currently not a legal offence in the country. The Digital India Bill aims to address these shortcomings.
The Indian Express had earlier reported that the Ministry of Electronics and IT (MeitY) could classify deliberate misinformation, doxxing, impersonation, identity theft, catfishing, and cyberbullying of children as offences under the new Bill. User harms related to emerging technologies, including generative AI platforms like ChatGPT and Google’s Bard, will also be addressed in the Bill, Chandrasekhar had earlier said.
