Does social media need safe harbor?

• The Union Ministry of Information and Broadcasting is reconsidering the concept of safe harbour for social media platforms to combat “fake news” online.

• Safe harbour is a legal concept that protects websites that allow third-party users to share content from legal liability for unlawful posts.

• Safe harbour was introduced in the early internet years to encourage innovation and prevent unfair hounded content.

• In the U.S., safe harbour is enshrined in Section 230 of the Communications Act of 1934, inserted into the law in 1996.

• In India, Section 79 of the Information Technology Act, 2000, grants intermediaries similar protections.

• In India, if an intermediary receives “actual knowledge” of illegal content on their website, they lose liability protections under Section 79 if they don’t take the content down within a certain time period.

• Without safe harbour protections, online intermediaries could face significant consequences for illegal content.

• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have added additional conditions for platforms to retain protection from intermediary liability.

• The government has accused foreign social media platforms of flouting Indian laws and acting too slowly on takedown notices.

• The Ministry of Electronics and Information Technology has indicated it will draft a Digital India Act (DIA) that would incorporate these changes, but the outlines of how safe harbour would change under this proposed law have not yet been revealed.